DUPLICATE 


HXOOO 15377 


Legal 

Becisioos 

Medical. 


PURRINGTON. 


Cottimbia  ®nibers;itj)       . 

^ti)ool  of  Cental  anb  (J^ral  ^urgerp 


J^eference  Hibrarp 


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in  2010  witii  funding  from 

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THE  SEXUAL   INSTINCT. 

Its  Use  and  Dangers  as  Affecting 
HEREDITY    AND    MORALS. 

BY  JAMES  FOSTER  SCOTT,  B.A.,  M.D.  (Yale  University).  CM.  (Edinburgh  University). 
Late  Obstetrician  to  Columbia  Hospital  for  Women,   and  Lying-in  Asylum, 

Washington,  D.C.;  Late  Vice-President  of  the  Medical  Association 
of  the  District  of  Columbia,   Etc.,  Etc. 

FROM  AUTHOR'S  PREFACE:  "  This  book  contains  much  plain  talk- 
ing,  for  which  I  offer  no  defence.  Its  justification  will  be  found  in  the  body 
of  the  work. 

"My  endeavor  has  been  to  avoid  generalization  and  vagueness,  to  truth- 
fully present  physical  and  ethical  facts — not  evading  unpleasant  topics,  nor 
yet  transgressing  the  limits  of  propriety. 

"Science  strips  all  draperies  from  the  objects  it  examines,  and,  in  the 
search  after  truth,  sees  no  indecorum  in  an  earnest  line  of  study,  and 
recognizes  no  impropriety  in  looking  at  objects  under  an  intense  light  and 
in  good  focus. 

"  Painful  as  it  is  to  treat  subjects  so  repulsive,  a  man  cannot  choose  his 
duty,  nor  can  he  honestly  evade  it.  Therefore,  knowing  of  no  other  work 
of  like  character,  I  present  this  as  the  best  effort  of  which  I  am  at  present 
capable  for  the  preservation  of  the  individual  and  the  welfare  of  the  race." 

THE  PHILADELPHIA  MEDICAL  JOURNAL  says:  "  The  subject  is  one 
that  requires  most  delicate  treatment,  and  the  views  here  promulgated  are 
those  to  which  physicians  in  general  will  give  assent.     We  could  wish  that 
the  object  for  which  it  has  been  written  would  be  fulfilled." 
8vo.   436  Pages.    Illustrated.   Cloth,  $2.00. 

MENTAL  DISEASES, 

Epitome  of  ;  Including  iheir  Classifications,  Synonyms  and  Symptoms,  their  Etiology,  Diag- 
nosis, Prognosis  and  Treatment. 
BY  JAMES  SHAW,  M.D.,  Formerly  Medical  Superintendent,  and  Co-Licensee,  Haydock 
Lodge  Asylum,  London. 

Its  Semi-Dictionary  form  of  compilation  makes  its  ready  reference 
exceedingly  convenient  for  practitioners  and  students.  Its  several  chapters 
are  devoted  to:  Definitions  of  Insanity  and  Classification  of  Mental  Diseases; 
Index  of  Mental  Diseases  with  their  Synonyms  and  Symptoms;  Therapeu- 
tics and  Hygiene;  Legal  Regulations  and  Forensic  Psychiatry. 
8vo.    346  Pages.    Illustrated.    Cloth,  $2.00. 


CIVIL  LAW 

IN   THE 

ECCLESIASTICAL     WORLD. 

Being  a  compendium  of  the  religious  Corporations  Law  and  the  Clergy- 
man's Legal  Adviser  Combined.  Containing  the  Religious  Corporations 
Law,  a  Resume  of  the  Marriage  Law,  Church  and  Clerical  Exemption  La\ys, 
the  Sabbath  Law,  Privileges  of  Spiritual  Advisers,  Drawing  of  Deeds,  with 
Forms,  relating  to  the  State  of  New  York  to  Date.  For  the  use  of  Min- 
isters of  all  Denominations,  Trustees  of  all  Religious  Corporations  and 
their  Attorneys.  By  the  Rev.  Charlks  Siieakd  and  Lawrence  Russei.l,  At- 
torney-at-Law.  With  a  Chapter  Specially  Prepared  for  this  Work,  on  Draw- 
ing of  Deeds,  Bequests  and  Conveyances  to  Religious  and  Eleemosynary 
Corporations.  By  Mr.  Justice  Russei.l,  of  the  Supreme  Court  of  the  Slate 
of  New  York. 

Price  in  Leatherette,    Postage  paid.    50  Cents,  net. 
E.  B.  TREAT  &  CO.,  241-243  W.  23d  St.,  NEW  YORK. 


Hamilton's  System  of  [Complete  in  2  Vols. 


E 


A  Complete  work  of 
Reference  for  Medical 
and  Lec-al  Practitioners 


By  ALLAN  HcLANE  HAMILTON,  M.D., 

Consulting  Physician  to  the  Insane  Asylums  of  New  York  City, 

Assisted  by  LAWRENCE  GODKLN,  Esq.,  of  the 
New  York  Bar,  and  Others. 


Its  list  of  Ihhty  contributors  includes  the  names  of  the 
most  distinguished  writers  and  autliorities  upon  Medical 
Jurisprudence  in  America.     As  a  book  of  reference,  with 

its   4000    citations 


and  cases,  it  will  be 
found  an  invaluable 
help  to  medical  men, 
and  to  those  of  the 
legal  profession  who 
desire  the  aid  of  the 
most  advanced  and 
sound  opinions  of 
practical  students  of 
forensic  medicine. 
So  much  ojiprobri- 
um  has  been  attach- 
ed to  the  word  "ex- 
pert," that  it  has 
been  the  aim  of  the 
Editor  and  his  col- 
leagues to  give  the 

work  a  decided  judicial  and  impartial  tone,  so  that  it  may 

be  consulted  with  confidence  by  all  as  an  authority  of  the 

highest  order. 

Short   articles  upon  legal   subjects  by  distinguished 

members  of  the  American  Bar  are  a  marked  feature  of  the 

work.     The  cases  cited  are  recent,  and  chiefly  American, 

and  up  to  date  in  theory  and  practice. 

THE  WORK  is  complete  in  two  large  royal  octavo 

volumes  of  about  seven  hundred  pages  each,  illustrated. 

Fully   Indexed    by    3202    References.      In   cloth,  per 

volume,  $5.50;  full  sheep,  per  volume,  $6.50. 

Sold  by  subscription.  Sent  carriage  paid  on  receipt  of  price. 

E.  B.  TREAT  &  CO  ,  Publishers, 
241-243  West  23d   Street,   New  York. 


A    REVIEW   OF    RECENT 


LEGAL    DECISIONS 

AFFECTING 

PHYSICIANS,     DENTISTS,     DRUGGISTS 


AND   THE 

PUBLIC    HEALTH 


TOGETHER    WITH 

A    BRIBK 

FOR  THE  PROSECUTION  OF  UNLICENSED  PRACTITIONERS 
OF  MEDICINE,  DENTISTRY,  OR  PHARMACY,  WITH 
A    PAPER    UPON    MANSLAUGHTER,  CHRIS- 
TIAN SCIENCE  AND  THE   LAW 
AND  OTHER  MATTER 


By   W.    a.    PURRINGTON 

OP   THE   NEW   YORK    BAR 

Counsel  of  the  Pental  Society  of  the  State  of  New  York,  and  Lecturer  of  Medical  and 

Dental  Jurisprudence  in  the  New  York  College  of  Dentistry,  and  one  of  the 

collaborators  in   "A  System  of  Legal    Medicine,"  by  Allan 

McLane  Hamilton,  and  others,  etc. 


New  York 

E.    B.    TREAT    &    COMPANY 

241-243  West  23d  Street 

1899 


V 


Copyright,  1899,  by 

E.  B.  TREAT  &  COMPANY 

New  York 


PREFATORY 


Formerly,  reported  law  cases  specifically  affecting  medical 
practitioners  were  comparatively  rare.  In  his  work,  on 
''The  Jurisprudence  of  Medicine,"  published  in  1869,  Ordro- 
nauxcited  324.  In  187  r,  Glenn's  "  Treatise  upon  Laws  Affect- 
ing Medical  Men  "  cited  but  458.  In  1877,  McClelland,  in 
his  "Civil  Malpractice,"  collected  but  76;  in  that  work,  how- 
ever, cases  are  reported  in  full  instead  of  being  merely  cited. 
In  "The  Law  and  Medical  Men,"  published  in  1884  by  Mr. 
Vashan  Rogers,  334  cases  are  cited,  and  in  Field's  "  Medico- 
Legal  Guide,"  appearing  in  1887,  there  are  410  citations.  Since 
that  time,  owing  to  increasing  medical  legislation  and  litigitiQjj) 
of  malpractice  actions,  the  number  of  cases  reported  annualljf 
is  much  greater  than  ever  before.  In  the  single  article  upon 
"  The  Legal  Relations  of  Physicians  and  Surgeons  to  their  Pa- 
tients and  to  One  Another,"  in  "  A  System  of  Legal  Medicine," 
by  Allan  McLane  Hamilton  and  others,  published  in  1894, 
there  are  518  cases  cited,  and  in  "The  International  Medical 
Annual "  for  1898  the  number  of  such  law  cases  noted  for  the 
preceding  year  was  131. 

The  publishers  of  that  Annual  have  therefore  thought  it 
worth  while  to  issue  its  review  of  legal  decisions  during  the 
past  year  as  a  separate  pamphlet,  adding  to  it  a  convenient 
brief  of  the  law  points  that  usually  arise  in  the  prosecution  of 
unlicensed  practitioners  of  Medicine,  Dentistry,  and  Pharmacy, 
and  such  other  matter  as  may  serve  to  make  clear  the  public 
purpose  and  benefit  of  the  laws  regulating  the  practice  of  these 
vocations. 

The  brief,  it  is  believed,  gives  citations  of  authority  upon 
any  points  likely  to  arise  in  such  prosecutions,  sufficient  to 
make  it  of  assistance  at  trial  to  magistrates,  courts,  and  coun- 
sel; and  it  is  hoped  that  the  other  text  may  be  serviceable  in 


4  PREFATORY. 

pointing  out  the  true  purpose  of  medical  legislation,  and  per- 
suading those  who  have  thought  little  of  the  matter,  that  dentis- 
try is  not  a  trade  or  a  handicraft  or  yet  a  profession  apart,  as 
some  have  contended,  but  is  a  specialty  of  medicine. 

The  laws  of  the  various  States  have  not  been  reprinted  be- 
cause their  bulk  would  increase  the  size  and  cost  of  the 
pamphlet  to  an  extent  not  compensated  for  by  the  occasional 
advantage  to  the  reader  of  having  at  hand  the  statute  of  some 
State  other  than  his  own,  and  also  because  these  laws,  being 
still  in  formative  process,  are  so  of  ten  amended  that  a  compila- 
tion correct  when  given  to  the  printer  might  be  defective  upon 
issuing  from  the  press. 

It  is  a  pleasure  in  this  connection  to  give  public  recognition 
to  the  untiring  zeal  of  my  friend,  Dr.  William  Carr,  of  New 
York  city,  who  as  censor  of  the  First  District  Dental  Society, 
chairman  of  the  Law  Committee  of  the  Dental  Society  of  the 
State  of  New  York,  member  of  the  State  Board  of  Dental  Ex- 
aminers, trustee  of  the  New  York  College  of  Dentistry,  and  in 
other  capacities  has  for  years  freely  devoted  his  time  and  means 
to  the  advancement  of  the  standard  of  professional  education 
in  the  special  department  of  medical  science  wherein  he  elected 
to  practise  after  graduation  as  a  Doctor  of  Medicine,  thus  fully 
paying  the  debt  that  every  one  is  said  to  owe  to  his  profession. 

I  have  added  the  article  upon  Manslaughter,  Christian 
Science,  and  the  Law,  reprinted  from  the  Medical  Record.,  with 
footnotes  calling  attention  to  cases  on  the  brief  in  this  pam- 
phlet, correcting  the  citation  of  Regina  v.  Cook,  which  should 
have  been  Regina  v.  Senior,  and  citing  the  decision  in  the  latter 
case,  reported  after  that  article  went  to  press.  The  increase  in 
the  number  of  so-called  Christian  Scientists,  and  the  prevalent 
ignorance,  even  among  the  votaries  of  the  cult,  of  what  its 
theories  are,  led  me  to  write,  at  the  request  of  the  editor,  for 
the  March  number  of  the  NortJi  Ai/ierican  Review,  an  article 
summarizing  the  teachings  of  Mrs.  Eddy  and  discussing  their 
legal  aspects.  It  is  quite  safe  to  say,  judging  from  the  testi- 
mony in  reported  law  cases,  that  no  two  practitioners  of  Chris- 
tian Science  would  probably  agree  with  themselves  or  their 
founder  as  to  what  the  theory  and  the  practice  of  the  cult  are. 

W.    A.    PURRINGTON. 

59  Wall  Street,  April  lo,  1899. 


CONTENTS. 


A  REVIEW  OF  CASES  AFFECTING  MEDICAL  MEN,  .       5 

Medical  laws  :  the  purpose  and  justification  of; — citations,  .  .       7 

Dentistry  a  specialty  of  medicine  ; — citations,       .....      10 

The  pharmacist  as  a  medical  man,      .  .  .         .  .  .  .      14 

Diflferentiations  of  medical  men,  .  .  .  .  .  .  .15 

Need  of  Examining  Boards,  illustrated,       .  .  .  .  .  .17 

The  methods  of  enforcing  medical  laws,      ......     20 

NOTES   OF   AMERICAN    LEGAL   DECISIONS. 
[From  advance  sheets,  International  Medical  A  nnual.\ 

I.  Statutory  Regulation  of  Medical  Practice  ; — citations,  25 
Who  is  a  physician  ? — Evidence — Christian  Scientists — Den- 
tistry— Osteopathy — Constitutionality  of  laws — Discrimina- 
tion against  medical  schools — Application  of  licensing  laws 
— Dental — Pharmaceutical — Powers  of  examining  and  licens- 
ing boards — Pleading  and  Procedure. 

II.  Fees — Compensation  ; — citations 33 

Compensation  for  attending  county  poor — Value  of  services 
— Evidence  of  valueless  services — Autopsy  by  hospital 
officer,  gratuitous — Arbitration  of  fees. 

III.   Malpractice  ; — citations, 36 

Who  are  liable  in  action  for  malpractice  ? — Hospital  cases — 
Question  for  the  jury — The  same  applicable  to  dentists — 
Duty  to  inform  patients  of  misadventures — Liability  of 
damages  arising  from  a  mistake — Question  for  the  Jury — 
Proximate  causes — Obstetrics — Anesthetics  — Contributory 
negligence — Dentists — Measure  of  damages  as  affected  by 
patient's  refusal  to  submit  to  an  operation — Evidence  in 
malpractice,  and  negligence  cases — Evidence  of  medical 
qualifications. 

IV.  Evidence; — citations,      .         .         , 47 

Privilege  of  professional  confidences — Communications  by  a 
prisoner  not  privileged — Decedent's  estate — Effect  of  refusal 
to  reveal  plaintiff's  confidence  in  an  action  by  the  physi- 
cian— Waiver  of  privilege — Privilege  of  patients — Mental 
weakness — Incompetency — Extent  to  which  non-expert  wit- 
nesses may  testify — Basis  of  expert  testimony — Speculative 
testimony — Expert  fees — x-ray  evidence  in  surgical  cases. 


CONTENTS. 


V.    Excise  Laws,  and  sales  of  intoxicating  liquors  ; — citations,         57 
Liability  of  physician  for  dispensing — Sale  by  pharmacists 
— Dentists. 

VL  Public  Health  ; — citations 58 

Food — Power  of  authorities  to  restrain  adulteration  and  sale 
of — Sale  of  milk  from  infected  tenements — Food  adultera- 
tions— Cases  relating  to  pleading  and  procedure — Powers  of 
municipalities — Rights  of  owners  regarding  tenements  as 
nuisances — Unsanitary  tenements — Nuisance  of  drains — 
Owners  entitled  to  choice  of  sanitary  appliances — Nuisance 
of  pest-house — Quarantine  site — Liability  of  authorities  for 
damages — Vaccination — Compensation  of  health  oflicers. 

VII.   Miscellaneous  ; — with  citations, 65 

Tenure  of  office,  college  and  hospital  professors — Libel — 
Right  of  privacy — Unauthorized  use  of  physician's  name  in 
advertising  proprietary  articles — Literary  property — Man- 
slaughter resulting  from  neglect — Taxation,  Medical,  Chari- 
table, and  Educational  bodies — Sanctity  of  the  person — 
Autopsy — Pharmacy — Unlawful  sale  by  employee — Assault 
by  administration  of  drugs — Murder — Evidence  relevant  to 
the  charge. 

A   BRIEF 

For  the  Prosecution  of  Unlicensed  Practitioners  in 
Medicine,  Dentistry,  or  Pharmacy. 

I.  Violations, 73 

II.  Penalties 74 

III.  Constitutionality  of  the  Law, 75 

1.  Medical  laws; — citations. 

2.  Dental  laws  ; — citations. 

3.  Pharmacy  laws  ; — citations. 

IV.  The  Indictment  or  Complaint, 78 

V.  The  Usual  Issues  in  such  Prosecutions,  .         .         .79 

VI.  Order  and  Burden  of  Proof, 80 

VII.  The  Prosecution's  Case, 81 

The  general  rule ;  citations — In  what  practice  consists ; 
citations — Definitions — Dentistry  ;  citations —  Pharmacists 
and  druggists ;  citations. 

VIII.    The  Case  of  Defendant, 86 

I.  As  to  disproof  of  prosecution's  case.  2.  Proof  of  Li- 
cense, State  certificate,  Diplomas;  citations — Registration; 
citations — Exemptions — Fees,  Emergencies,  Assistants — 
Sale  of  drugs  in  rural  communities. 

Manslaughter  ; — the  rule  of  common  law  ; — the  New  York  penal 

code  definition,     ..........     91 

Christian  Science, 100 

Malpractice,  and  the  Law, 105 


A   REVIEW   OF    CASES   AFFECTING 
MEDICAL  MEN. 


The  Purpose  and  Justification  of  Medical  Laws. 

Bv  the  term  "  medical  laws "  is  here  meant  all  legislative 
acts  regulating  the  practice  of  cither  general  physic  and  sur- 
gery, or  special  departments  thereof,  as  dentistry  and  pharmacy. 

The  right  of  every  man  to  the  fullest  opportunity  consistent 
with  public  welfare  of  earning  a  livelihood  by  exercising  what- 
ever talents  and  aptitudes  for  industry  he  may  have,  is  so  mani- 
fest and  vital  that  every  proposition  to  restrain  it  is  properly 
looked  upon  with  jealous  scrutiny. 

Laws  framed  only  to  benefit  a  class  at  the  expense  of  the 
community,  by  placing  any  handicraft,  art,  calling,  or  business 
in  the  hands  of  the  few  to  their  enrichment,  and  so  diminish- 
ing competition,  are  indefensible,  injurious  to  the  State,  and 
obstructive  to  progress  in  the  art,  profession,  or  science  affected. 

The  prescription  by  law  of  formulas  or  methods  of  practice, 
the  statutory  fostering  of  one  system  at  the  expense  of  another 
in  any  liberal  calling,  are  improper  uses  of  legislation.  In 
medicine,  for  instance,  it  would  be  unwise  to  forbid  absolutely 
the  practice  of  any  particular  method  of  cure,  or  to  command 
that  no  treatment  of  the  sick  should  be  followed  unless  ap- 
proved by  the  regular  practitioners;  but  it  seems  entirely  prop- 
er to  forbid  the  uneducated  to  practise  according  to  any  sys- 
tem. In  other  words,  although  the  State,  in  order  to  protect 
private  citizens  and  the  public  health  against  ignorance  and 
imposture,  may  wisely  require,  as  a  prerequisite  of  license  to 
practise  medicine  at  all,  a  general  education  supplemented  by 
special  medical  study  and  knowledge,  yet  it  would  be  most  un- 
wise, and  obstructive  to  progress,  should  the  system  or  methods 


8  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

of  practice  be  prescribed  by  statute,  or  the  practice  of  any  sys- 
tem absolutely  forbidden.  When  the  licentiate  has  demon- 
strated that  he  is  adequately  equipped  for  his  profession  by 
study  and  acquirement,  according  to  the  learning  of  the  age, 
he  should  be  left  free  to  apply  his  knowledge,  skill,  and  judg- 
ment in  particular  cases,  to  investigate  and  experiment.  His 
education  and  the  judgment  of  his  fellows  afford  the  best  safe- 
guard against  his  adoption  of  mere  vagaries;  while  civil  and 
criminal  liability  for  malpractice,  the  sense  of  duty,  and  desire 
to  succeed  professionally  afford  in  each  case  the  best  assur- 
ances that  he  will  exercise  due  caution  and  requisite  care. 

The  right  of  the  State,  having  in  view  the  public  welfare,  to 
regulate  by  general  laws  the  practice  of  medicine,  has  often 
been  discussed  by  courts  of  last  resort,  which  have  affirmed 
the  constitutionality  of  such  legislation,  and  approved  its  pur- 
pose. In  the  decisive  case  of  Dent  v.  State  of  West  Virginia 
(129  U.  S.  114),  Mr.  Justice  Field,  expressing  the  unanimous 
opinion  of  the  Supreme  Court  of  the  United  States,  said: 
"  Few  professions  require  more  careful  preparation  by  one  who 
seeks  to  enter  it  than  that  of  medicine.  It  has  to  deal  with  all 
those  subtle  and  mysterious  influences  upon  which  health  and 
life  depend;  and  requires  not  only  a  knowledge  of  the  proper- 
ties of  vegetable  and  mineral  substances,  but  of  the  human 
body  in  all  its  complicated  parts,  and  their  relation  to  each 
other,  as  well  as  their  influence  upon  the  mind.  The  physician 
must  be  able  to  detect  readily  the  presence  of  disease,  and  pre- 
scribe appropriate  remedies  for  its  removal.  Every  one  may 
have  occasion  to  consult  him,  but  comparatively  few  can  judge 
of  the  qualifications  of  learning  and  skill  which  he  possesses. 
Reliance  must  be  placed  upon  the  assurance  given  by  his 
license,  issued  by  an  authority  competent  to  judge  in  that  re- 
spect, that  he  possesses  the  requisite  qualifications.  Due  con- 
sideration, therefore,  for  the  protection  of  society  may  well 
induce  the  State  to  exclude  from  practice  those  who  have  not 
such  a  license,  or  who  are  found  upon  examination  not  to  be 
fully  qualified." 

From  remote  times  the  practice  of  medicine  has  been  regu- 
lated by  law,  to  greater  or  less  extent,  with  occasional  intervals 
when  selfish  class  effort,  actual  or  supposed,  to  use  for  private 
gain  the  public  statute,  has  brought  about  reaction, — as  when 
the  House  of  Lords,  reversing  the  law  courts  in  the  case  of 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  9 

Rose  V.  The  College  of  Physicians  (3  Salk.,  17;  6  Mod.,  44; 
5  Bro.  Pari.  Rep.,  553;  a.d.  1703),  and  deciding  that  apothe- 
caries as  well  as  physicians  might  prescribe  drugs,  made  the 
apothecary  the  general  medical  practitioner  of  England;  a  de- 
cision arrived  at  for  the  reason,  apparently,  that  their  lordships 
considered  it  overburdensome  to  require  the  poor,  for  them- 
selves, and  the  rich,  for  their  servants,  to  call  in  a  physician 
to  prescribe,  an  apothecary  to  dispense,  and  a  surgeon  to  let 
blood.* 

The  old  English  statutes  quaintly  express  both  the  justifica- 
tion of  and  objection  to  medical  legislation,  from  the  view- 
point of  public  welfare;  thus  the  Act  of  Parliament  of  1540, 
consolidating  the  separate  mysteries  of  the  barbers  and  sur- 
geons, recited  that  persons  using  the  mystery  of  surgery  took 
into  their  houses  people  infected  with  pestilence,  great  pox,  and 
other  contagious  infirmities,  and  also  exercised  barbery,  as 
washing,  shaving,  or  other  feats  thereto  belonging,  which  was 
very  perilous  for  infecting  the  King's  liege  people.  So,  too, 
the  Faculty  of  Physicians  and  Surgeons  of  Glasgow  was  estab- 
lished in  1599  to  avoid  the  inconvenience  caused  by  "  ignorant, 
unskilled,  and  unlearned  persons,  who  under  the  color  of  chi- 
rurgeons  are  in  the  habit  of  abusing  the  people  to  their  pleasure, 
and  of  destroying  thereby  infinite  numbers  of  his  Majesty's 
subjects."  The  first  medical  act  of  Henry  VIII. |  recited  that 
physic  and  surgery  were  practised  by  "  ignorant  persons  who 
could  tell  no  letters  on  the  book,  common  artificers,  smiths, 
weavers,  and  women  who  took  upon  themselves  great  cures, 
partly  using  sorcery  and  witchcraft,  and  partly  applying  very 
noxious  medicines  to  the  disease";  and  subsequently  in  the 
same  reign, |  medical  practice  was  confined  to  physicians  and 
surgeons.  On  the  other  hand,  later  in  that  reign, s<  for  the  al- 
leged reason  that  the  "  Company  and  Fellowships  of  Surgeons 
in  London,  minding  only  their  own  lucres,  and  nothing  the 
profit  or  ease  of  the  diseased  or  patient,  have  sued,  troubled, 
and  vexed  divers  honest  persons,  etc.,  .  .  .  and  it  is  now  well 
known  that  the  surgeons  admitted  will  do  no  cure  to  any  per- 

*  "  Evolution  of  the  Apothecary,"  Medical  Kecord,  September  nth,  1S86, 
vol.  XXX. ,  p.  2S1. 

f  3  Hen.  VIII.,  c.  11,  (a.d.  1511.) 

X  14  and  15  lien.  VIII.,  c.  v. ;  32  Hen.  VIII.,  c.  xl. 

I  34  and  35  Hen.  VIII.,  c.  viii. 


lO  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

son,  but  where  they  shall  know  to  be  rewarded,  with  a  greater 
sum  or  reward  than  the  cure  extendeth  unto,"  and  further  be- 
cause, "  although  the  most  part  of  the  persons  of  the  said  craft 
of  surgery  have  small  cunning,  yet  they  will  take  great  sums  of 
money  and  do  little  therefor,"  it  was  permitted  that  persons 
with  knowledge  and  experience  of  the  nature  of  herbs  might 
practise  and  minister  them,  and  apply  outward  remedies  with- 
out suit  or  vexation.* 

So  in  New  York  at  the  beginning  of  the  century  the  practice 
of  medicine  was  strictly  regulated,  but  later  an  exception  was 
made  in  favor  of  persons  using  herbs  of  home  growth,  and  sub- 
sequently the  statutes  forbidding  practice  by  the  unlicensed 
were  entirely  repealed,  only  to  be  restored  eventually,  so  that 
to-day  the  requirements  of  license  in  that  State  and  the  penal- 
ties for  unlawful  practice  are  greater  than  they  were  under  the 
early  laws. 

In  this  way  has  medical  legislation  been  assailed  and  de- 
fended. But  at  all  times  its  avowed  purpose  and  sole  justifi- 
cation have  been  the  protection  of  the  public  against  ignorant 
men  undertaking  to  care  for  the  sick  without  due  knowledge  of 
disease  or  its  treatment. 


Dentistry  Is  a  Specialty  of  Medicine. 

To-day  in  medical  practice  we  approach  the  condition  of  the 
Egyptians,  who  had,  as  Herodotus  writes, f  special  practitioners 
of  medicine  for  every  part  of  the  body.  Medical  schools  pre- 
pare students  to  begin  professional  life  as  general  practition- 
ers; the  majority  of  physicians  do  so  begin  it,  and  from  the 
necessities  of  the  case  the  country  doctor  is  quite  certain  to 
remain  in  general  practice  for  life.  But  in  great  cities  the 
tendency  to  specialism  grows.  Probably  the  best  specialist  is 
he  who,  spending  his  earlier  years  in  general  practice,  confines 
himself  later  to  a  particular  field  into  which  he  is  led  by  cir- 
cumstance or  special  interest  and  aptitudes.  But  whether  one 
studies  primarily  to  become,  or  becomes  by  the  drift  of  circum- 

*  The  old  English  statutes  are  collected  by  Cilcnn,  ' '  Laws  Affecting  Medi- 
cal Men,"  and  are  recited  less  fully  in  Mr.  Vashan  Rogers'  very  entertaining 
book,  "  The  Law  and  Medical  Men." 

f  Euterpe,  §  84. 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  II 

stances,  an  otologist,  ophthalmologist,  orthopedist,  gynecolo- 
gist, laryngologist,  odontologist  or  dentist,  dermatologist,  or 
what  not,  the  fact  that  he  devotes  himself  exclusively  to  a  special 
region  of  the  human  body  does  not  render  it  unnecessary,  but 
rather  the  contrary,  that  he  should  found  his  specialization  upon 
a  knowledge  of  general  principles;  nor  because  surgeons  use 
knife  and  saw,  and  orthopedists  construct  and  devise  special 
appliances,  are  these  specialists  to  be  classed  as  mechanics  or 
excluded  from  the  class  of  medical  men,*  Yet  plain  as  this 
may  seem,  the  proposition  has  been  vigorously  disputed,  and  it 
has  been  stoutly  maintained  that  one  who  cares  for  the  teeth, 
call  him  dentist,  odontologist,  or  stomatologist,  is  not  a  med- 
ical man  following  a  surgical  specialty,  but  is  either  a  crafts- 
man,! a  trader,^  or  a  member  of  a  separate  profession. §  And 
the  reason  is  not  far  to  seek.  Ordinary  dental  operations  re- 
quire for  their  successful  performance  an  unusual  degree  of 
manual  dexterity  and  mechanical  skill,  to  acquire  which  a  con- 
siderable period  of  training  is  requisite.  In  our  own  century 
extraction  of  teeth  was  commonly  performed  by  blacksmiths 
and  barbers,  while  jewellers  and  ivory  carvers  made  the  arti- 
ficial dental  appliances.  Later,  dentists  being  noted  rather 
for  dexterity  with  tools  than  for  scientific  attainment,  dentistry 
was  associated  chiefly  with  the  mechanical  work  of  extracting 
and  repairing  teeth  and  the  manufacture  of  artificial  substitutes 

*  "  Is  Dentistry  a  Specialty  of  Medicine?"  Medical  Record,  vol.  xxx. , 
p.  642. 

t  State  ex  rel.  Flickenger  v.  Fisher,  24  S.  W.,  167;  s.  c.  21  S.  W.,  446; 
cf.  Maxon  v.  Perrot,  17  IMich.,  332  ;  Whitcomb  v.  Reed,  31  Miss.,  567. 

\  Lee  V.  Griffin,  30  L.  J.  Q.  B.,  252  ;  cf.  French  cases  cited  by  Roger  et 
Godon,  "Codede  Chirtirgien-Dentiste,"  p.  88. 

§  In  some  jurisdictions  the  practice  of  dentistry  is  defined  by  statute, 

In  Minnesota  a  practitioner  of  dentistry  is  defined  as  one  "  who  shall  for  a 
fee  or  salary  or  other  reward,  paid  either  to  himself  or  for  another  person  for 
operations  or  parts  of  operations  of  any  kind,  treat  diseases  or  lesions  of  the 
human  teeth  or  jaws,  or  correct  malpositions  thereof."  Clearly  this  is  a 
definition  of  a  medical  specialist. 

In  Dakota  such  a  practitioner  is  defined  as  one  "  who  shall  perform  upon 
the  human  teeth,  or  parts  adjacent  thereto,  any  operation  or  operations,  such 
as  are  commonly  known  or  designated  as  dental  operations  or  operations  in 
dental  surgery,  or  who  shall  hold  himself  out  by  means  of  signs,  cards,  or 
advertisements  as  a  dentist." 

And  see  "A  System  of  Legal  Medicine,"  by  Allan  McLane  Hamilton, 
and  others,  vol.  i.,  p,  641. 


12  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

for  them.  To  the  ignorant  or  thoughtless  a  dentist  is  no  more 
a  surgeon  than  is  a  truss-maker;  they  see  only  the  mechanical 
process,  the  art,  and  fail  to  note  or  apprehend  that  progress  in 
the  science  of  dentistry,  within  very  recent  years,  has  been  so 
great  and  rapid  as  fully  to  entitle  to  rank  among  medical  special- 
ists its  practitioners,  who,  within  the  memory  of  living  man, 
were,  as  Messrs.  Godon  and  Roger  point  out,*  as  much  the  ob- 
ject of  depreciation  and  ridicule  as  the  physician  or  surgeon 
of  Moliere's  time.  Nor,  indeed,  do  such  persons  realize  how 
recently  it  is  in  England  that  a  surgeon  has  been  regarded,  by 
those  willing  to  intrust  their  lives  to  his  care,  as  a  person  of 
humble  social  position. f 

As  the  physician  has  ceased  to  be  called  a  "  leech"  and  the 
surgeon  a  "  saw-bones,"  so  has  the  dentist  ceased  to  be  de- 
scribed by  cheap  wits  as  a  "  tooth-carpenter  "  ;  and  if  the  minds 
of  some  persistently  associate  the  dentist  of  to-day  with  the 
old-time  peripatetic  extractor  of  teeth  and  maker  of  cumbrous 
appliances,  it  is  largely  due  to  the  unprofessional  business 
methods  still  adopted  by  certain  persons,  notably  proprietors 
of  so-called  "dental  parlors,"  who,  like  the  ancient  barber- 
surgeons  of  Henry  VIII.,  "minding  only  their  own  lucres  and 
nothing  the  profit  or  ease  of  the  diseased  or  patient,"  make 
hideous  displays  to  wayfarers;  and  by  advertising  cheap  work, 
snare  poor  patients,  whom  they  commit  to  the  hands  of  em- 
ployees, too  often  ignorant,  unskilful,  and  unlicensed. 

It  is  because  the  due  practice  of  operative  dentistry  requires 
professional  attainments  of  a  high  order^ — a  general  knowledge 
of  the  human  economy,  and  a  very  special  knowledge  of  the 
oral  tract,  its  customary  lesions,  diseases,  and  abnormalities — as 
well  as  manual  dexterity,  that  laws  prohibiting  the  ignorant 
from  such  practice  are  distinctly  legislation  in  the  interest  of 

*  "  Attaqiu',  calomnic^,  ridiculisi',  comvie  le  chirurgien  ou  le  vi^decin  au 
ternps  de  Moliere,  le  dentisie  a  eu  pendant  une  bonne  fartie  du  sii'cle,  un 
sort  peu  enviable." — "Code  de  Chiritrgien-Dentisle,"  par  MM.  Roger  et 
Godon,  Paris,  1893. 

f  George  Eliot,  writing  in  our  own  time,  makes  one  of  lier  characters,  Lady 
Chettam,  say:  "  Tell  me  about  this  new  yoimg  surgeon,  Mr.  Lydgate.  Tarn 
told  he  is  wonderfully  clever.  lie  certainly  looks  it — a  fine  brow,  indeed! 
Mr.  Brooke  says  he  is  one  of  the  Lydgates  of  Northumberland,  really  well 
connected;  one  does  not  expect  it  in  a  practitioner  of  that  kind.  I'^or  my 
own  part,  I  like  a  medical  man  more  on  the  footing  with  the  servants  ;  they 
are  often  all  the  cleverer." — "  Middlemarch." 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  13 

the  public  health.  The  statute  of  New  York  recognizing  this 
expressly  exempts  from  its  purview  the  "  mechanical  dentist," 
i.e.^  the  handicraftsman  who  works  in  the  lal)orato?y  upon  inert 
matter.  Of  this  mechanic  the  operator,  his  employer,  expects, 
it  is  true,  excellence  in  his  art;  but  the  law  exacts  nothing. 
It  is  with  the  operator  whose  work  is  upon  the  living  orgatiisin 
that  the  statute  is  concerned.  As  to  him,  the  case  is  very  dif- 
ferent. No  amount  of  manual  skill  alone  can  equip  him  to 
work  intelligently  or  to  the  best  results  without  anatomical, 
pathological,  and  therapeutical  knowledge.  To  many  it  seems 
that  the  filling  of  a  tooth  is  a  purely  mechanical  operation, 
well  performed  if  the  cavity  is  "  plugged  "  firmly  and  smoothly, 
and  if  no  immediate  pain  results;  that  an  extraction  is  a  sim- 
ple act,  scarce  worthy  to  be  called  an  operation ;  and  that  the 
insertion  of  artificial  teeth  or  dentures  is  a  mere  bit  of  handi- 
work entirely  successful  if  mechanically  accurate.  Let  a  few 
examples  suffice  to  illustrate  how  fallacious  is  this  popular 
idea. 

There  came  to  a  dentist  of  New  York,  who  having  been  first 
graduated  as  a  physician  took  up  dentistry  as  a  specialty,  a 
patient  seeking  immediate  relief  from  suffering  due  to  the  con- 
dition of  his  tongue  which  a  surgeon  had  diagnosed  as  cancer- 
ous growth  necessitating  amputation.  The  dentist  became  sat- 
isfied that  the  condition  was  owing  solely  to  traumatic  lesions 
due  to  rough  edges  of  the  teeth.  These  latter  he  filed  down, 
and  applied  slight  local  treatment  to  the  inflamed  organ.  The 
patient  was  relieved,  and  by  further  treatment  complete  resto- 
ration of  normal  conditions  resulted.  A  lady  was  sent  from  a 
Southern  State  to  a  leading  surgeon  of  the  same  city  with  a 
request  that  he  would  operate  to  excise  cancerous  growth  upon 
the  tongue.  He  took  the  patient  to  a  dentist,  had  certain  teeth 
removed,  and  after  local  treatment  sent  her  home  entirely  re- 
lieved, without  the  necessity  of  any  operation.  A  neurologist 
sent  to  a  dentist  a  patient  who  had  for  years  suffered  with  acute 
facial  neuralgia,  to  relieve  which  anodynes  had  been  freely 
prescribed.  An  examination  disclosed  that  the  gums  had 
grown  over  roots  of  a  tooth  that  had  been  broken  in  the  past 
by  a  clumsy  effort  at  extraction.  The  local  conditions  being 
properly  attended  to,  the  pains  no  longer  occurred;  but  the 
opium  habit  contracted  under  treatment  rcm;iined. 

When  the   Dental  Act  of  France  was  debated  prior  to  its 


14  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

passage,  the  harm  done  by  mere  mechanicians  in  fitting  artifi- 
cial plates  over  diseased  surfaces  was  fully  brought  out.  A 
distinguished  aurist  of  New  York,  now  deceased,  was  wont  to 
say  that  a  large  part  of  the  diseases  of  the  ear  that  he  was 
called  upon  to  relieve  grew  out  of  unwise  dentistry;  and  Dr. 
Garretson,  who  beginning  his  medical  career  as  a  dentist,  ended 
it  as  a  distinguished  oral  surgeon,  said  as  long  ago  as  i860, 
before  the  Pennsylvania  Association  of  Dental  Surgeons: 
"  When,  years  back,  before  this  association,  I  have  spoken  of 
anemia,  chlorosis,  and  kindred  conditions  as  the  source  of 
dental  caries,  1  have  been  met  with  rebuke  for  travelling  out- 
side my  profession.  Let  me  now,  gentlemen,  add  my  mite  to 
the  experience  of  to-night  by  affirming  that  I  believe  I  have 
saved  more  teeth  by  constitutional  treatment  than  ever  I  have 
through  manipulation."  The  same  writer,  in  the  preface  to 
his  fifth  edition  of  "  A  System  of  Oral  Surgery,"  written  in 
1890,  says:  "Oral  surgery,  twenty  years  back,  was  without  so 
much  as  a  name.  To-day,  oral  surgery  as  a  specialty  in  med- 
icine is  not  surpassed,  as  to  its  range  and  as  to  requirements 
looked  for  on  the  part  of  its  practitioners,  by  any  department 
of  the  healing  art.  .  ,  .  Where  medical  knowledge  is  lacking, 
dentistry  is  of  little  use  to  a  community."  To  go  further  into 
this  matter  here,  even  if  the  lay  writer  were,  as  he  is  not,  com- 
petent to  treat  the  question  from  the  technical  standpoint  of 
oral  surgery,  would  transgress  the  prescribed  limits  of  this  dis- 
cussion. Enough  has  certainly  been  said  to  show  that  those 
laymen  who  see  in  the  dentist  only  a  craftsman,  and  those  den- 
tists who  aim  to  be  nothing  more  than  craftsmen,  have  a  very 
superficial  and  poor  idea  of  what  dentistry  is,  as  practised  by 
its  leading  men,  and  what  it  should  be  if  patients  are  to  receive 
adequate  treatment  at  the  hands  of  dental  practitioners. 


The  Pharmacist  as  a  Medical  Man. 

Just  as  the  dentist  has  been  popularly  regarded  as  a  mere 
mechanic  to  whom  special  medical  knowledge  was  unnecessary, 
so  the  pharmacist  has  been  considered  as  nothing  more  than  a 
tradesman,  although  in  fact  he  is  constantly  practising  medi- 
cine, or,  as  the  phrase  is,  "counter-prescribing."  It  has  been 
already  pointed  out  how,  through   public  toleration   of  their 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  1 5 

irregular  practice  in  England,  apothecaries — who  were  for- 
merly there,  as  they  still  are  with  us,  mere  dispensers  of  drugs 
— came  eventually  to  be  general  medical  practitioners;  the 
titles  "  chemist,"  "  chemist  and  druggist,"  and  "  pharmaceutical 
chemist"  coming  into  use  instead  of  the  older  name. 

That  it  may  be  desirable  for  an  apothecary,  pharmacist,  or 
druggist  to  have  some  medical  knowledge  would  appear  from 
the  fact,  or  alleged  fact,  that  compounders  of  prescriptions 
have  been  known  to  save  life  either  by  calling  attention  to 
grave  mistakes,  or,  where  they  have  feared  to  wound  amour 
propre  and  lose  custom,  by  quietly  correcting  errors.  On  the 
other  hand,  it  is  forcibly  argued  that  the  medical  education  of 
a  pharmacist,  short  of  what  is  required  for  the  physician's  de- 
gree, is  a  direct  incentive  to  irregular  practice.  There  is  no 
space  here  to  review  that  discussion ;  nor  is  there  any  doubt 
that  the  dispensing  pharmacist  or  druggist  is  in  some  degree  a 
medical  man  who  should  be  educated  in  his  business. 


Differentiations  of  Medical  Men. 

The  questions  obviously  arising  out  of  the  regulation  of 
general  medical,  dental,  and  pharmaceutical  practice  by  sepa- 
rate laws  make  it  apparent  that  hopeless  confusion  would  re- 
sult if  the  practice  of  every  medical  specialty  were  separately 
regulated.  The  fact  that  laryngologists,  gynecologists,  ocu- 
lists, and  other  specialists  are  equipped  for  practice  by  the 
same  general  course  of  medical  study  and  training,  and  usually 
drift  into  special  from  general  work,  operates  to  create  esprit 
du  corps,  to  prevent  friction  among  them,  and  to  obviate  efforts 
by  one  of  them  to  prohibit  encroachment  by  others  upon  his 
field.  But  the  pharmacist  who  is  not  licensed  to  practise  med- 
icine has  been  frequently  punished  for  his  violation  of  law  in 
prescribing  a  remedy  over  his  counter;  and  although  general 
systemic  treatment  of  his  patient  by  a  dentist,  unlicensed  to 
practise  general  medicine,  has  not  yet  been  made  a  ground  of 
prosecution  under  medical  laws,  such  prosecutions  have  been 
suggested;  and  vice'vcrsa,  it  has  been  argued  that  physicians 
are  liable  to  prosecution  who  treat  the  teeth  without  a  dental 
license.  While  a  license  to  practise  medicine  would  be  a 
complete  protection  to  the  prescribing  druggist,  thorougli  medi- 


1 6  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

cal  education  is  not  likely  to  be  required  or  sought  by  those  in- 
tending to  engage  in  that  business  which,  strictly  speaking,  does 
not  imply  personal  relations  with  the  patients.  But  practice  of 
dentistry  does  involve  of  necessity  the  exercise  of  medical  and 
surgical  knowledge,  and  the  relation  of  operator  and  patient; 
therefore  the  possession  by  dentists  of  the  medical  degree 
would  seem  very  desirable,  and  the  drift  is  to  that  requirement. 
Already  many  physicians  with  surgical  and  mechanical  apti- 
tude have  limited  their  practice  to  treatment  of  the  oral  cavity, 
and  these  it  has  been  proposed  to  distinguish  as  stomatologists, 
leaving  the  name  dentist  to  designate  those  who  do  only  me- 
chanical work.  But  it  seems  unnecessary  to  express  an  opin- 
ion here  on  this  debated  nomenclature. 

It  is  to  be  hoped — perhaps  more  hoped  than  expected — that 
a  new  generation  will  find  the  jarring  medical  sects  united  in 
a  common  accord.  A  long  step  in  this  direction  was  taken  in 
New  York,  when  the  Act  of  1887  codifying  the  penal  features 
of  the  medical  law  was  passed.  Thitherto  every  attempt  to 
secure  legislation  made  by  regular  practitioners  had  been  stren- 
uously opposed  by  homoeopaths  and  eclectics,  as  well  as  by  the 
army  of  Christian  scientists,  clairvoyants,  magnetists,  mind 
curers,  faith  curers,  truss-makers,  and  all  those  wishing  to  en- 
gage in  the  business  of  healing  the  sick  without  training  or 
study.  But  when  convinced  that  the  proposed  law  was  not  a 
covert  attack  upon  their  medical  theories,  the  homoeopaths 
earnestly  favored  it  and  materially  helped  its  passage;  while 
the  eclectics  withheld  or  modified  their  usual  opposition.  The 
enactment  of  that  law  paved  the  way  for  the  existing  system 
of  medical  license  whereunder  three  examining  boards  exist, 
and  candidates  having  passed  uniform  examinations  in  those 
branches  of  medical  science  in  which  there  is  no  schism,  elect 
the  system  of  therapeutics  in  which  they  will  be  examined.  If 
it  be  true,  as  said,  that  the  differences  between  the  enlightened 
practitioners  of  the  various  schools  are  already  nominal  rather 
than  real,  it  may  not  be  oversanguine  to  expect,  with  the 
growth  of  accurate  knowledge,  an  obliteration  of  the  schools 
and  a  unification  of  the  profession.  In  proportion  as  practice 
is  founded  upon  certain  and  scientifically  acquired  knowl- 
edge, upon  carefully  observed  facts  rather  than  fanciful  theo- 
rizing, the  differences  of  medical  men  tend  to  disappear,  or  to 
become  differences  of  opinion  in  particular  cases  rather  than 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  1 7 

on  general  principles;  and  in  this  fact  lies  the  hope  of  future 
medical  harmony. 

To  this  end  the  enforcement  of  medical  legislation  is  believed 
by  those  who  favor  it  to  conduce. 


The  Need  of  Examining  Boards  Illustrated. 

An  amusing  and  instructive  volume  might  be  made  up  from 
answers  of  candidates  for  medical  and  dental  licenses  before 
the  examining  boards  of  the  several  States.  We  are  so  habit- 
uated in  the  ordinary  business  of  life  to  accepting  men  at  their 
own  valuation,  to  attaching  undue  importance  to  diplomas  and 
school  certificates,  that  many  fail  to  appreciate  the  value  of 
the  system  that  interposes  an  impartial  State  examining  board 
between  the  people  and  the  graduates  of  medical  colleges  de- 
sirous of  practising  medicine  upon  the  strength  of  their  diplo- 
mas alone.  A  wall  is  only  as  strong  as  its  weakest,  a  fence  no 
higher  than  its  lowest,  part.  Wherever  the  so-called  diploma 
standard  of  qualification  exists,  the  poorest  diploma  recog- 
nized sets  that  standard.  Only  a  few  years  ago  throughout  the 
country  the  fraudulent  diplomas  of  Buchanan  and  others  of  his 
kidney  afforded,  as  they  still  afford  in  some  localities,  the 
standard  of  licenses. 

When  in  New  York  any  one  was  allowed  to  practise  medi- 
cine who  held  the  diploma  of  a  chartered  medical  school,  the 
profession  was  invaded  and  the  public  imposed  upon  by  illit- 
erate and  incompetent  practitioners  holding  so-called  diplomas, 
obtained  after  mere  formal  attendance  at  lectures  or  by  down- 
right purchase  m  absentia.  "  Colleges  "  were  organized  as  mat- 
ter of  business.  Even  the  best  institutions  were  over-lenient 
from  an  ill-founded  fear  of  diminishing  the  number  of  students, 
and  the  consequent  revenues.  To-day  in  that  State  a  diploma 
from  the  best  medical  school — from  Harvard,  or  the  College 
of  Physicians  and  Surgeons  in  New  York  itself — will  not 
operate  as  a  license  to  practise,  but  its  holder  must  submit 
to  examination  before  a  State  board.  The  same  is  true  of 
diplomas  from  dental  colleges.  The  result  of  establishing 
these  State  boards  has  been,  it  is  believed,  good  as  a  rule; 
but  the  best  results  are  obtained  where,  as  in  New  York,  the 
possession  of  a  diploma  confers  no  right  to  practise,  but  is 
2 


1 8  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

only  a  necessary  prerequisite  to  the  privilege  of  going  up  for 
examination  before  the  State  board  of  examiners. 

A  few  examples  of  answers  to  questions  from  examination 
papers  will  show  that  a  student  may  acquire  a  diploma  from 
colleges  of  a  certain  sort  without  acquiring  that  knowledge 
desirable  in  one  who  ministers  to  man's  physical  infirmities. 
These  examples,  it  should  be  said,  while  bona  fide,  are  not 
chosen  from  the  examination  papers  of  any  one  State. 

The  following  have  been  taken  from  papers  of  candidates 
for  license  to  practise  medicine: 

Q.  What  are  your  views  as  to  the  efficacy  of  vaccination  ? 

A.  I  don't  believe  into  it.* 

Q.  What  is  the  length  of  the  intestines? 

A.  (This  question  has  been  variously  answered  by  candi- 
dates with  estimates  varying  from  three  feet  to  three  hundred 
yards.) 

Q.  How  many  bones  are  there  in  the  human  body? 

A.  Very  many  indeed,  the  principal  ones  however  are  the 
bones  of  the  head  and  the  pelvis.  The  former  are  thin  the 
latter  thick.     All  other  bones  are  long, 

Q.  Give  the  chemical  formula  of  sulfuric  acid. 

A.  Not  correctly  spelled.  Should  be  sulphuric  acid — the 
wrong  spelling  is  probably  to  make  it  a  catch  question, — the 
missing  "  ph  "  in  the  spelling  being  the  formula  of  the  acid.f 

Q.  What  is  the  composition  of  atmospheric  air? 

A.  Carbon,  hydrogen.  Smoke  and  various  germs  of  disease 
in  epidemic  seasons. 

Q.  The  head  of  the  child  in  the  superior  strait — forceps  fre- 
quently applied  but  slip  off  on  traction,  pain  lessening,  mother 
growing  weaker — what  is  your  duty  ? 

A.  Send  for  the  man  who  is  to  mark  these  answer  papers  if 
he  will  but  reveal  his  identity. 

Q.  Describe  the  lobus  SpigeUi.\ 

A.  A  plant  indigenous  to  South  America  of  which  the  leaves 
alone  are  used.     It  is  a  stomachic — dose  of  the  tincture  30  drops. 

*  The  question  itself  might  have  been  better  framed.  Doubtless  the  can- 
didate fully  expressed  "  his  views." 

f  The  spelling  seems  to  have  been  a  concession — and  a  mistaken  one — to 
the  examiners'  theory  of  phonetics.     The  symbol  asked  for  is  II3SO4. 

t  One  lobe  of  the  liver.  The  botanic  genus  Spigelia  is  named  after  Van 
der  Spiegel,  and  may  have  been  in  the  candidate's  mind. 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  19 

Q.  What  is  understood  by  extra-uterine  pregnancy? 

A.  Pregnancy  without  the  uterus  as  for  instance  in  the  Eu- 
stachian tube,* 

The  following  questions  and  answers  are  from  papers  of 
candidates  for  license  to  practise  dentistry: 

Q.  What  is  the  difference  between  Materia  Medica  and 
Therapeutics? 

A.  Materia  Medica  treats  origin  and  physical  properties, 
while  Therapeutics  treats  of  drudgon  the  system. 

Q.  What  is  the  use  of  an  anaesthetic? 

A.  To  perform  a  painful  operation  it  is  necessary  but  some 
patitients  are  susepitable  to  anaesthetics,  these  patitients  are 
dibetic  patitient,  consumption,  aenemic  patitient.  Alcohol 
patitient  that  loss  a  quantity  of  blood  this  patitient  it  is  neces- 
sary to  build  before  use  of  anesthetics^ — or  on  a  full  stomach. 

Q.  What  are  physiological  effects  of  sulphuric  ether  while 
inhaled? 

A.  It  produces  semiplastic  condition  of  nerus  cell,  hence 
complete  anaesthesia  first  excite  muscular  contraction  increases 
flow  of  saliva,  opeon  of  eperglotis  and  reflex  action  of  swoling, 
feeling  of  sufication  and  other  inconveniences. 

Q.  What  are  the  effects  of  chloroform  when  inhaled? 

A.  Chloroform  produces  Death  by  perichysizing  Heart. 
First  increases  inspiratiin  three  or  four  minutes  not  as  long  as 
ether  but  more  dangerous.  Very  short  notice  patitient  pass 
away  without  notice.  Same  physiological  as  ether  only  it 
effect  heart  while  ether  only  effect  resp. 

Q.  What  is  the  difference  between  an  abscess  and  an  ulcer? 

A.  Abscess  contains  pus  and  an  ulcer  does  not. 

Q.   What  is  the  cause  of  the  variation  of  color  in  decay? 

A.  Sometimes  chewing  tobacco  sometimes  food  get  in  cavity 
and  form  sort  of  white  decay. 

Q.  Give  treatment  of  cocaine  poisoning. 

A.  Avoide  the  administration. 

Q.   When  is  the  use  of  an  anaesthetic  contraindicated? 

*  This  candidate  seems  to  have  had  the  same  theory  as  Agnes  in  Molicrc's 
"L'Ecole  des  Fenimes,"  acte  i.,  schic'  i  : 

"Elle  etoit  fort  en  peine,  et  me  vint  demander, 
Avec  une  innocence  h  nulle  autre pareille. 
Si  les  enfants  qtion  fait  se  faisoient par  roreille." 


20  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

A,  In  case  of  a  painful  operation  when  the  patient  is  capa- 
ble of  taking  such. 

Q.  What  are  the  fluids  of  the  mouth? 

A.   Spit. 

Q.  How  would  you  treat  a  fracture  of  the  inferior  maxillary? 

A.  Treat  with  Carbolic  Acid  and  lime  water,  keep  the  parts 
cool. 

Q.  Give  the  treatment  of  wounds  of  the  tongue. 

A.  Treatment  of  wounds  of  the  tongue  are  three.  Conti- 
nuity, Conditunity,  Caseuify. 

Q.  Define  plastic  surgery.  Describe  the  methods  that  may 
be  employed  in  plastic  surgery. 

To  this  question  the  three  answers  following  were  given : 

(i)  Plastic  surgery  is  used  when  you  use  plaster  on  the  sur- 
face instead  of  sowing  i:p  a  wound,  and  is  also  used  to  assist 
to  hold  a  wound  that  has  been  sowed  up  so  that  it  won't  pull 
out.     Use  as  counter  irretants,  etc. 

(2)  Staphylosoplasty  would  be  a  case  of  a  plastic  operation. 
The  uniting  of  the  parts  together  without  the  use  of  a  surgical 
operation.  For  example  in  a  cleft  palate  plastic  operations  are 
often  times  successful,  by  drawing  parts  together  and  keeping 
same  in  such  a  way  by  use  of,  in  this  case,  plaster  of  Paris, 
when  parts  held  in  such  way  will  in  time  unite. 

(3)  Plastic  surgery  may  apply  to  M.D.  or  D.D.S.  In  frac- 
tures of  bones  the  fractures  may  be  reduced  and  set  in  plaster 
of  paris.  For  the  M.D.  The  plastic  fillings  in  the  teeth,  ex- 
ample, mixing  H3  P.O4  and  oxide  of  xinz  and  is  called  an 
oxphosefate  filling.     This  is  plastic  work. 


The  Methods  of  Enforcing  Medical  Laws. 

It  remains,  finally,  to  say  a  word  as  to  the  manner  in  which 
medical  laws  are  enforced. 

The  argument  that  an  unenforced  law  is  worse  than  useless, 
is  v/ell  known.  It  is  by  enforcement  that  a  statute  becomes 
familiar  in  a  general  way  to  the  public,  which  by  a  most  vio- 
lent legal  presumption  is  supposed  to  know  law  often  unknown 
either  to  court  or  counsel.  It  is  through  enforcement  that  the 
law  acts  as  a  schoolmaster.  Unenforced  yet  unrepealed,  a 
\  penal  statute,  if  its  existence  be  generally  known,  breeds  con- 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  21 

tempt  for  law,  or  if  its  provisions  have  fallen  into  forgetful- 
ness,  proves  a  snare  to  the  unwary.  There  is  an  unfortunately 
increasing  tendency,  of  late  years,  toward  regulating  by  statute 
all  employmentSj  customs,  and  ordinary  acts  of  men.  This  is 
due  in  part  to  the  plague  of  annual  legislatures.  No  better 
examples  of  eccentric  legislation  can  be  found  than  two  laws 
on  the  New  York  statute-book.  One  of  them— which  has  never 
been  enforced  in  a  single  instance,  so  far  as  the  writer  knows — 
makes  liable  to  fine  and  imprisonment  any  person,  even  a  child, 
who  feeds  an  English  sparrow,  the  passer  domes ticus.  The 
other  makes  it  a  misdemeanor  for  a  Brooklyn  barber  to  shave  a 
customer  on  Sunday,  although  at  the  same  time  Figaro  in  New 
York  may  lawfully  render  that  service;  in  other  words,  makes 
an  act  of  cleanliness  and  comfort  lawful  at  one  end  of  Brook- 
lyn Bridge,  but  criminal  at  the  other.*  Not  only  occupations 
obviously  affecting  to  a  marked  degree  public  morals  and 
health,  such  as  the  sale  of  alcoholic  stimulants  and  the  prac- 
tice of  medicine,  but  also  such  pursuits  as  bookkeeping  and 
horse-shoeing,  have  been  taken  into  legislative  care.  It  is  per- 
fectly plain  that  laws  of  this  kind  cannot  and  should  not  be 
systematically  administered  by  the  municipal  police,  as  some 
enthusiasts  vigorously  contend.  The  true  function  of  the  uni- 
formed police  force  is  to  protect  life  and  property,  to  preserve 
order  and  decency  in  public  places,  and  to  execute  warrants 
issued  by  police  magistrates.  Of  its  own  initiative  that  force 
should  ferret  out  crimes  of  violence  that  have  escaped  observa- 
tion ;  but  of  its  own  initiative  it  should  not  engage  systematically 
in  detecting  the  violation  of  these  laws  merely  regulative  of  occu- 
pations and  customary  acts  or  morals;  to  do  so  would  take  the 
officers  from  their  proper  duties,  and,  worst  of  all,  would  tre- 
mendously increase  the  temptation  to  blackmail  that  is  now,  as 
it  has  always  been,  the  besetting  sin  of  men  hired  to  preserve 
order.  Here  again  we  confront  a  large  topic  that  cannot  in 
this  place  be  fully  dealt  with.  But  it  will  be  difficult  for  any 
one  becoming  familiar  with  the  question  to  resist  the  conclu- 
sion that  the  uniformed  police  force  should  not  customarily 
engage  in  the  work  of  detecting  stealthy  breaches  of  laws  relat- 
ing to  what  are  known,  for  want  of  a  better  classification,  as 
mala  prohibita  in  contrast  with  mala  in  se,  and  in  degree  amount- 
ing only  to  misdemeanors.  The  proposition  that  the  police 
*  People  t*.  Ilavnor,  149  N.  Y.,  195. 


22  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

should  systematically  procure  evidence  that  persons  have  been 
guilty  of  unlawfully  tossing  crumbs  to  sparrows,  totting  up 
accounts,  or  even  practising  medicine,  needs  only  to  be  stated 
to  demonstrate  its  intrinsic  absurdity. 

In  fact,  medical  laws  are  customarily  enforced,  if  at  all,  by 
organizations,  to  whose  members  they  are  matters  of  special 
interest,  such  as  medical,  dental,  and  pharmaceutical  societies, 
or  boards,  or  colleges.  Some  of  these  bodies,  like  the  State 
Dental  Society  of  New  York,  are  expressly  authorized  by  statute 
to  lay  informations  before  magistrates  to  aid  in  prosecutions, 
and  to  receive  wholly  or  in  part  the  fines  imposed  in  cases  pros- 
ecuted by  them.  Others,  like  the  incorporated  County  Medical 
Societies  of  New  York,  are  authorized  to  receive  the  fines  and 
by  implication  to  assist  in  the  prosecution.  In  their  work  such 
societies  employ  agents  to  examine  reported  cases  and  ascer- 
tain by  investigation  who  are  practising  without  the  required 
license  and  registration. 

Obviously  these  agents  are  exposed  on  the  one  hand  to  the 
temptation  to  exact  toll  from  the  suspected,  i.e.,  to  become 
themselves  a  source  of  license,  and  on  the  other  to  false  accu- 
sation by  those  upon  whom  they  keep  watch.  Herein  is  the 
strongest  argument  against  these  laws. 

Again,  the  temptation  to  "  make  a  record,"  as  the  phrase  is, 
may  lead  zealous  agents,  or  even  the  officer  or  attorney  charged 
with  the  conduct  of  such  a  society's  prosecutions,  to  overlook 
the  true  purpose  of  the  law,  and  in  zeal  for  his  own  interest  to 
forget  the  duty  that  is  owing  to  the  accused  by  prosecutors. 
Over-zealous  and  unfair  prosecutions,  resting  upon  no  better 
evidence  than  that  of  hired  detectives,  are  quite  certain  in  the 
long  run  to  work  the  repeal  of  an  ill-administered  law.  That 
statutes  of  the  sort  referred  to  cannot  be  enforced  systematically 
without  the  employment  of  detective  agents,  seems  demonstrated 
by  experience,  which  equally  demonstrates  the  advisability  of 
corroborating  the  testimony  of  those  agents  by  that  of  actual 
patients,  and  of  supervising  their  acts  by  persons  having  it 
always  in  view  that  the  purpose  of  the  law  is  the  prevention  of 
the  evil,  and  not  the  personal  advantage  of  any  one,  whether 
the  prosecuting  society,  its  counsel,  or  agent,  and  that  the 
chief  good  to  be  hoped  for  from  the  statute's  enforcement  is  its 
educational  and  deterrent  effect. 

Besides  securing  the  systematic  enforcement  of  the  law  under 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  23 

careful  supervision,  the  intervention  of  these  societies  has  the 
further  advantage  that  it  affords  to  persons  falsely  accused 
careful  investigation  of  the  charge,  and  adequate  redress  by  an 
action  of  false  arrest  or  malicious  prosecution,  which,  if  prose- 
cuted against  a  police  officer,  public  detective,  or  agent  of  such 
a  society,  would  yield  at  best  a  barren  victory,  but  if  prosecuted 
against  the  incorporated  society  is  likely  to  afford  full  repara- 
tion to  any  one  wronged  by  an  untruthful  accusation,  whether 
made  with  actual  malicious  intent  or  out  of  inexcusable  care- 
lessness. Moreover,  the  very  consciousness  that  such  actions 
are  possible, — and  they  have  been  not  infrequently  brought, — 
tends  to  make  the  officers  of  prosecuting  societies  more  careful, 
and  thus  affords  practitioners  adequate  protection  against  false 
accusations. 

As  has  been  suggested  elsewhere,*  the  conviction  of  the 
ordinary  unlicensed  practitioner  is  of  value  chiefly  in  that  its 
public  announcement  by  the  press  serves  the  double  purpose 
of  keeping  the  public  reminded  that  charlatanism  is  rife  and 
in  deterring  the  ignorant  from  attempting  to  assume  the  work 
of  the  learned.  There  are  also  special  cases  which  illustrate 
more  strongly  than  do  the  average,  the  benefit  that  may  accrue 
to  the  public  generally  from  the  enforcement  of  the  laws  under 
consideration  by  the  societies  referred  to. 

In  February,  1893,  Alfred  Booth,  styling  himself  M.D.  and 
Ph.D.,  opened  an  office,  i.e.,  took  a  room  in  a  little  hotel  in 
Tenth  Street,  in  New  York  city,  where  he  entered  upon  the 
sale  of  diplomas  of  the  Excelsior  Medical  College  of  Massa- 
chusetts. His  price  for  a  degree  of  Doctor  of  Medicine  was 
$50,  and  for  an  additional  ^25  he  conferred  also  the  degree  of 
Ph.D.  His  proceedings  having  been  brought  to  the  knowl- 
edge of  the  County  Medical  Society  by  the  New  York  Herald, 
he  was  arrested  and  sentenced  to  a  term  of  six  months  in  the 
penitentiary,  the  sentence  being  light  in  consideration  of  the 
defendant's  plea  of  guilty  and  his  advanced  age  of  seventy 
years.  In  the  following  July,  Walter  May  Rew,  a  man  of  con- 
siderable ability,  engaged  in  similar  business,  information  of 
which  was  given  by  the  same  newspaper,  and  in  the  following 
October  he,  too,  was  sentenced  to  a  term  of  imprisonment  upon 

*  "  How  Far  can  Legislation  Aid  in  Maintaining  a  Tropcr  Slamianl 
of  Medical  Education?"  A  paper  read  before  the  American  Social  Science 
Association,  at  Saratoga,  September  5,  1888, 


24  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

his  plea  of  guilty.  Both  of  these  men  cynically  offered  to  give, 
for  trifling  sums,  to  absolutely  ignorant  persons,  certificates 
that  would  lead  the  unsuspecting  to  suppose  the  holders  to  be 
well-equipped  physicians.  One  of  these  men,  when  asked  by 
the  person  to  whom  he  sold  a  "diploma"  what  the  latter  should 
do  about  a  death  certificate  in  case  a  patient  should  die,  re- 
plied in  writing:  ''When  I  say  that  the  diagnoses  of  forty  per 
cent,  of  death  certificates  are  guesses,  hazarded  on  insufficient 
data,  and  are  very  often  erroneous,  you  need  not  be  much  afraid 
to  hazard  a  guess  also." 

Equally  striking  instances  maybe  found  in  the  prosecutions 
under  the  Dental  Law,  In  1895,  Jesse  Gagnon  engaged  with 
his  brother  George  in  advertising  dental  business  in  New  York 
city,  the  two  conducting  the  so-called  New  York  Dental 
Parlors  and  the  New  System  Dental  Parlors.  In  December 
of  that  year  Jesse  was  arrested  upon  the  charge  of  practis- 
ing under  the  false  name  of  Thomas  E.  Jackson,  a  graduate 
of  the  Western  Dental  College  of  Kansas  City.  Inquiry  at 
that  college  was  answered  by  a  statement  that  the  Thomas  E. 
Jackson  there  graduated  had  been  killed,  as  the  authorities 
were  informed,  in  Illinois,  and  had  written  a  short  time  before 
his  death  to  ask  for  a  copy  of  his  diploma,  alleging  that  the 
,  original  was  lost.  Further  inquiry  by  the  State  Society  dis- 
closed that  Gagnon  had  been  proceeded  against  in  other  States 
for  violation  of  dental  laws.  A  person  in  his  employ  at  the 
time  of  arrest  made  affidavit  that  he  had  been  instructed  by 
defendant  to  assume  falsely  the  title  of  Doctor  and  a  name  not 
his  own,  and  had  been  further  advised  that  his  business  would 
be  to  get  as  much  money  as  possible  from  patients.  He  was 
further  prepared  to  testify  that  upon  taking  employment  he 
was  told  that  the  work  done  cheaply  was  ill  done,  and  would 
necessitate  the  return  of  the  patient  for  further  treatment. 
After  delaying  the  prosecution  for  two  years  by  demurrer  and 
dilatory  procedure,  the  defendant  was  at  last  arraigned  for  trial, 
pleaded  guilty  to  the  offence  charged,  and  paid  a  fine  of  $500, 
the  highest  that  could  be  imposed  under  the  statute. 

Further  citation  of  examples  would  seem  scarcely  necessary 
to  justify  legislation  to  protect  the  public  against  such  mis- 
doing. 


Notes  of  America^i  Legal  Decisions 

AFFECTING    MEDICAL   PRACTITIONERS  AND  THE 
PUBLIC    HEALTH. 

The  following  cases,  revised  to  date  of  going  to  press,  deal 
for  the  most  part  with  topics  touched  upon  in  the  article  enti- 
tled "  Of  Certain  Legal  Relations  of  Physicians  and  Surgeons 
to  Their  Patients  and  to  One  Another,"  in  "  A  System  of  Legal 
Medicine,"  by  Allan  McLane  Hamilton  and  others  (E.  B.  Treat 
&  Co.,  New  York,  1894-99).  References  have  been  made, 
therefore,  to  that  work,  in  order  that  those  having  copies  of  it 
might  annotate  them,  and  those  wishing  to  investigate  the  prin- 
ciples involved  in  the  following  cases  might  be  furnished  with 
anterior  authorities.  The  large  number  of  decisions  cited — one 
hundred  and  thirty-five  in  number — renders  it  impossible,  with- 
in the  allotted  space,  to  do  more,  as  a  rule,  than  indicate  their 
salient  points;  but  cases  involving  matter  of  special  interest 
have  been  more  fully  stated.  Under  the  modern  system  of 
American  reporting,  any  one  desiring  a  full  report  of  a  case 
can,  by  citing  the  reference,  procure  a  copy  of  the  Reporter 
containing  it,  at  an  average  cost  of  twenty-five  cents,  from  the 
West  Publishing  Company,  of  St.  Paul,  Minn. 

The  abbreviations  A.,  Pac,  N.E.,  N.W.,  S.E.,  and  S.VV., 
indicate  the  Atlantic,  Pacific,  Northeastern,  Northwestern, 
Southeastern  and  Southwestern  Reporters;  N.Y.S.,  App.  Div., 
and  Misc.,  indicate  respectively  New  York  Supplement,  Ap- 
pellate Division,  and  Miscellaneous  Reports;  N.Y.L.J.,  New 
York  Law  Journal;  L.J.R.,  Q.B.Div. — Law  Journal  Reporter, 
Queen's  Bench  Division.  Other  abbreviations  of  State  and 
English  Reports  are  obvious. 

Pages  in  Hamilton  refer  to  the  first  volume,  unless  the  sec- 
ond is  specified. 

W.    A.    rURRINGTON, 

59  Wall  Street,  January  16,  1S99. 


26  MEDICAL    ANNUAL. 


I.  Statutory  Regulation  of  Medical  Practice. 

Who  Is  a  Physician — Evidence  (Ham.,  p.  602).  Holding 
Out. — A.  went  to  B.,  a  druggist,  believing  him  to  be  a  doctor 
also,  to  have  an  injured  finger  treated.  13.  treated  the  finger 
wrongly  for  ten  days,  necessitating  amputation.  A.  brought  an 
action  to  recover  damages  for  malpractice. 

Held,  that  if  B.  "  treated,  operated  on,  or  prescribed  for  any 
physical  ailment,"  he  was  practising  medicine  within  the  Illi- 
nois statute;  that  if  he  held  himself  out  to  A.  as  a  doctor,  and 
A.  believed  him  to  be  such,  he  was  liable  for  failing  to  exer- 
cise the  skill  and  care  of  a  doctor;  and  whether  the  facts  of 
those  premises  were  true,  w'as  for  the  jury  to  say. 
Matthei  v.  Wooley,  69  111.  App.,  654. 

"Christian  Scientists." — In  Rhode  Island,  A.,  who  under- 
took for  a  money  consideration  to  cure  malaria,  grippe,  and 
whatever  other  diseases  persons  who  came  to  him  "  imagined 
they  had,"  was  indicted  for  practising  medicine  unlawfully. 
Upon  the  testimony  it  appeared  that  he  gave  those  who  came 
to  him  pamphlets  on  Christian  Science  and  apparently  engaged 
in  silent  prayer,  but  gave  no  drugs  or  medicines,  used  no  sur- 
gical instruments,  and  made  neither  examination  nor  diagno- 
sis. He  testified  that  he  did  not  attempt  to  cure  disease,  that 
he  knew  nothing  of  medicine  or  surgery,  and  that  his  only 
method  was  "  prayer  and  effort  to  encourage  hopefulness  for 
all  who  come  to  him  in  public  or  private,  and  whatever  dis- 
eases they  imagine  they  have." 

Held,  that,  under  the  statute  of  that  State,  A.  was  not  prac- 
tising medicine;  that  if  Christian  Science  be  practice  of  medi- 
cine, it  is  a  school,  and  entitled  to  recognition  by  the  State 
board  under  the  laws  which  forbid  discrimination  against 
medical  schools,  since  to  prescribe  requirements  with  which  a 
particular  school  could  not  comply  would  be  not  to  discrimi- 
nate only,  but  to  prohibit. 

State  7.'.  Mylod,  40  Atl.,  753. 

(Cf.  State  7'.  Buswell,  40  Neb.,  158,  a.d,  1894,  where  it  was 
held,  on  the  contrary,  that  a  Christian  Scientist  using  the 
above  methods  only  was  practising  medicine  within  the  mean- 
ing of  the  Nebraska  statute.  See  sub-title  ''  Manslaughter," 
below,  under  main  title   "  Miscellaneous."     And,  as  to  dis- 


NOTES    OF    LEGAL    DECISIONS.  27 

crimination  against  schools,  see  that  sub-title  under  "Consti- 
tutionality of  Laws,"  below,  in  this  division.) 

In  an   unreported  Maryland  case,  Wright,  J.,  held  that  no 
fees  could  be  recovered  for  faith-cure  treatment. 
Doty  V.  Winters,  Oct.  27,  1897. 

A.,  charged  with  unlawfully  practising  medicine  and  surgery, 
admitted  that  he  was  not  a  licensed  or  registered  physician. 
It  appeared  that  he  acted  in  conjunction  with  one  Dr.  B.,  a 
duly  registered  physician,  and  another.  Dr.  C,  not  shown  to  be 
registered;  that  the  three  operated  jointly,  and  divided  the  re- 
muneration equally.  A.  offered  evidence  to  show  that  he 
operated  and  administered  remedies  under  B.'s  directions. 
The  prosecution  offered  evidence  to  show  that  he  also  acted 
without  B.'s  instructions  in  B.'s  absence.  The  trial  court 
charged  that  if  A.  did  not  practise  on  his  own  account,  but 
acted  under  B.'s  direction,  the  jury  should  find  him  not  guilty. 

Held,  on  appeal,  that  this  was  error ;  that  under  the  Nebraska 
statute  any  person,  not  expressly  exempted  from  its  operation, 
who  "  operates  on,  professes  to  heal  or  prescribe  for  or  other- 
wise treat  any  physical  or  mental  ailment  of  another,"  is  prac- 
tising medicine,  whether  he  acts  on  his  own  account  or  under 
the  direction  of  a  registered  practitioner,  and  that  whether  he 
professes  himself  to  be  a  legal  and  competent  practitioner 
or  not  makes  no  difference. 

State  V.  Paul,  76  N.W.,  861. 

Dentistry. — Practice  is  established   by    showing    that  the 
accused  leased  and  occupied  rooms  for  the  avowed  purpose  of 
there  practising,  did  dental  work  there  for  three  or  more  per- 
sons, filled  teeth,  and  worked  at  the  bench. 
Ferner  v.  State,  51  N.E.,  360  (Ind.). 

"Osteopathy." — A.  engaged  in  "the  profession  of  osteopa- 
thy," received  and  visited  patients,  advertised  his  system  and 
skill,  professed  ability  to  understand  and  treat  human  ailments 
intelligently  and  successfully,  including  fevers,  cerebro-spinal 
meningitis,  catarrh,  diphtheria,  croup,  pneumonia,  and  other 
diseases.  His  treatment  consisted  wholly  of  rubbing  and 
manipulating  afflicted  parts  and  flexing  the  limbs. 

Held,  that  he  practised  medicine  within  the  definition  of  the 
Illinois  statute;  that  by  professing  to  diagnose  diseases  and 
give  discriminating  treatment,  he  differed  from  masseurs  and 
those  giving  Turkish  baths;  that  Smith  v.  Lane  did  not  apply 


28  MEDICAL    ANNUAL. 

— the  New  York  statute  differing  from  that  of  Illinois,  and  the 
facts  of  the  cases  being  different. 

Eastman  v.  People  ex  rel.  St.  Bd.  of  Health,  71   111., 
App.,  236. 

In  Ohio,  on  the  contrary,  it  was  held  that  an  "  osteopath  " 
is  not  a  practitioner  of  medicine  within  the  statute. 

Eastman  v.  State,  6  Ohio  Dec,  296  (Jan.,  1897). 

Constitutionality  of  Laws  (Ham.,  p.  596). — The  principle 
involved  was  fully  discussed  in  Dent  v.  W.  Va.,  129  U.  S., 
114  (1889),  and  other  cases  cited  in  Hamilton. 

Ex  Post  Facto  Laws. — Vested  Rights. — A.,  convicted  in 
New  York  of  a  felony  in  1877,  served  a  term  of  imprisonment. 
Long  after  the  expiration  of  his  term,  a  statute  was  enacted  in 
that  State,  making  guilty  of  misdemeanor  any  person  "who 
after  conviction  of  a  felony  shall  attempt  to  practise  medicine." 
Under  this  statute,  A.  was  indicted,  for  that  having  been  so 
convicted,  he,  thereafter,  practised  medicine  unlawfully  by  treat- 
ing and  prescribing  for  one  H.  contrary  to  the  statute.  Upon 
his  admission  of  said  conviction  and  subsequent  practice  of 
medicine,  A.  was  found  guilty  of  unlawfully  practising  con- 
trary to  the  statute.  Apparently  the  record  did  not  show  that 
he  was  ever  licensed  as  a  physician.  On  appeal,  the  Appellate 
Division,  admitting  the  constitutionality  of  said  provision  of 
the  law  in  its  application  in  futuro,  reversed  the  conviction 
upon  the  ground  that  said  statute,  in  depriving  A.  of  his  right 
to  practise  on  account  of  a  felony  committed  before  its  enact- 
ment, imposed  an  additional  penalty  for  that  crime,  and  was 
ex  post  facto.  The  Court  of  Appeals  reversed  the  Appellate 
Division,  apparently  on  the  ground  that,  as  it  nowhere  appeared 
in  the  record  that  A.  ever  had  a  right  to  practise  medicine, 
there  was  no  proof  that  he  was  deprived  of  any  right  or  ever 
had  any  right  to  so  practise,  wherefore  such  practice  on  his 
part  was  misdemeanor,  without  regard  to  whether  or  not  he 
had  committed  the  felony  and  been  punished  therefor.  The 
Supreme  Court  of  the  United  States,  by  a  divided  bench,  dis- 
regarding the  defect  of  the  record,  affirmed  the  validity  of  the 
law  in  its  operation  upon  persons  convicted  of  felonies  prior 
to  its  enactment — holding  said  provision  to  be  not  a  new  pun- 
ishment, but  a  regulation  dependent  on  character  of  which 
such  a  conviction  was  evidence. 

People  V.  Hawker,  14  App.  Div.,  188  ;  S.  C,  152  ;  N.  Y.^ 


NOTES    OF    LEGAL    DECISIONS.  29 

234.     Hawker  v.  People  of   New  York,  170;  U.  S., 
189;   18   Sup.  Ct.  R.,  573.     See  Medical  Record  of 
July  24,  1897,  vol.  lii.,  p.  114. 
The  Ohio  statute  containing  a  similar  provision  was  held  to 
be  prospective  and  constitutional. 

France  v.  State,  57  Ohio  St.,  i ;  47  N.E.,  1,041  (Oct.  26, 
1897). 
A.,  being  licensed  to  practise  in  Indiana  at  the  time  the  law 
of  1897  took  effect,  was  refused  a  license  by  the  board  created 
under  that  law,  upon  the  ground  that  his  previous  license  had 
been  procured  fraudulently.  Upon  his  application  for  a  writ 
of  mandamus,  directing  the  board  to  issue  to  him  a  license — 

Held,  that  the  law  of  1897,  forbidding  medical  practice 
without  license,  making  existing  licenses  revocable  upon  fail- 
ure of  their  holders  to  comply  with  the  law's  provisions,  and 
permitting  the  licensing  board  to  refuse  its  certificates  to  felons 
or  persons  grossly  immoral  or  unfit  for  a  physician's  duties  by 
reason  of  addiction  to  drugs  or  liquors,  was  valid,  and  not 
an  unconstitutional  interference  with  vested  rights. 

State  V.  Webster,  150  Ind.,  607;  50  N.E.,  750. 
See  also 

State  V.  Morrill,  7   Ohio  Dec,  52.     Commonwealth  v. 
Wilson,  19  Pa.  Co.  Ct.  R.,  521  (Aug.,  1897).     Re  Roe 
Chung,  49  Pac,  952  (New  Mexico,  August,  1897). 
Dental  Laws  (Ham.,  p.  643), — The  Pennsylvania  statute 
forbidding  practice  of  dentistry  except  in  compliance  with  its 
terms,  does  not  abridge  the  privileges  and  immunities  of  citi- 
zens unconstitutionally. 

Commonwealth  v.  Gibson,  7  Pa.  Dist.  R.,  386. 
So  held  also  in  Indiana. 

Ferner  v.  State,  51  N.E.,  360  (supra). 
Discrimination  against  Medical  Schools — In  Texas,  A. 
sued  ]].  to  recover  fees  for  medical  services.  B.  defended  on 
the  ground,  among  other  things,  that  A.  was  not  entitled  to 
practise,  not  having  a  certificate  from  any  board  of  medical 
examiners  of  the  State.  It  was  undisputed  that  A.  held  a 
diploma  of  the  Eclectic  Medical  Institute  of  Cincinnati,  duly 
chartered  and  accredited  in  Ohio,  and  had  recorded  it  as  re- 
quired by  law  in  the  district  clerk's  ofiice;  but  that  he  had  no 
certificate  from  any  Texas  board.  The  Constitution  of  Texas 
prescribes  that  the  legislature  may  establish  by  law  qualifica- 


30  MEDICAL    ANNUAL, 

tions  for  practitioners  of  medicine,  providing,  however,  that 
"  no  preference  shall  ever  be  given  by  law  to  any  school  of 
medicine."  The  qualification  prescribed  by  the  statute  is 
a  certificate  by  a  board  of  examiners  composed  of  physicians, 
"graduates  of  some  medical  college  recognized  by  the  Amer- 
ican Medical  Association."  It  was  undisputed  evidence  that 
said  Association  recognized  only  "  allopaths"  or  "regulars," 
so-called,  but  not  eclectics,  and  the  plaintiff  contended  that 
the  statute  was  unconstitutional. 

Held,  that  the  mere  fact  that  the  board  was  directed  to  be  so 
composed  did  not  necessarily  prefer  the  regular  school  and  so 
render  the  statute  unconstitutional,  and  that  it  would  not  be 
presumed  that  the  board  in  its  examinations  would  violate  the 
law.  Judgment  for  defendant  was  therefore  affirmed. 
Dowdell  V.  McBride,  45  S.W.,  397. 

Exemptions  of  Consultants  from  Other  States  and 
Others. — The  Ohio  statute  forbidding  physicians  of  other 
States  from  practising  in  Ohio,  except  as  consultants,  is  not 
unconstitutional  as  abridging  the  privileges  and  immunities  of 
citizens  of  the  United  States  or  of  the  several  States. 
France  v.  State,  57  Ohio  St.,  i   {supra). 

Nor  does  that  of  North  Carolina,  which   exempts  from   its 
operation  those  practising  in  the  State  at  the  time  of  its  enact- 
ment,  grant  exclusive  privileges   and  emoluments,  or  create 
monopolies  and  perpetuities  in  violation  of  the  constitution. 
State  V.  Call,  28  S.E.,  517. 

So,  also,  a  statute  is  valid,  although  it  exempt  from  its  provi- 
sions medical  officers  of  the  United  States,  of  hospital  staffs, 
etc.  (Ham.,  p.  604). 

Commonwealth    v.    Wilson,    19    Pa.    Co.    Ct.    R.,  521 
(supra) . 

Application  of  Licensing  Laws. — Dental. — The  Pennsyl- 
vania act  does  not  apply  to  those  practising  in  the  State  at  the 
time  of  its  enactment. 

Commonwealth  v.  Gibson  (supra). 

The  Maryland  statute's  exemption  from  its  purview  of  those 
holding  certificates  obtained  prior  to  its  enactment,  refers  only 
to  certificates  issued  in  Maryland,  not  to  those  given  in  other 
States, 

Knowles  7>.  State,  39  Atl.,  619. 

PharmaceuticaL — The  New   Vork  public   health    law  ex- 


NOTES   OF    LEGAL    DECISIONS.  3 1 

empts  from  the  category  of  pharmacists,  medical  practitioners 
not  proprietors  of  stores  for  retailing  drugs. 

Held,  not  to  prevent  one  physician  from  compounding  anoth- 
er's prescription,  notwithstanding  that  pharmacy  is  defined  to 
be,  among  other  things,  the  compounding  of  prescriptions  to 
be  used  with  medicines. 

Held,  also,  that  a  physician  does  not  come  within  the  scope 
of  the  law  unless  engaged  in  the  business  of  pharmacy. 
Suffolk  Co.  V.  Shaw,  21  App.  Div.,  146. 

Registration  (Ham.,  p.  600). — A  physician  registered  prior 
to  March  i,  1894,  in  one  county  of  Pennsylvania,  under  the 
Act  of  June  8,  188 1,  may  still,  after  the  passage  of  the  Act  of 
May  18,  1893,  practise  in  any  county  of  the  State. 

Commonwealth  v.  Townley,  7  Pa.  Dist.  R.,  413, 

Transient  Offices. — A.,  renting  an  office  by  the  year   and 
keeping  regular  office  hours  thrice  weekly,  is  not  indictable 
under  the  Pennsylvania  statute  for  keeping  a  transient  office. 
Commonwealth  v.  Townley  {supra). 

Powers   of   Examining   and   Licensing  Boards   (Ham.,  pp. 

598,  599)- 

An  Oregon  State  board,  having  power  to  license  without 
examination  holders  of  medical  diplomas,  refused  to  license 
A.  It  was  succeeded  by  a  new  board,  with  power  to  license 
only  after  examination. 

Held,  that  the  new  board  could  not  review  its  predecessor's 
action,  and  license  A.  without  examination. 

Miller  v.  Board  of  Med.  Examiners,  52  Pac,  763. 

In  Oklahoma,  the  superintendent  of  public  health,  and  not 
the  board  of  health,  is  the  proper  authority  to  license  physi- 
cians. 

Weeden  ?'.  Arnold,  49  Pac,  915  (July,  1897). 

To  practise  lawfully  in  Texas,  one  must  comply  with  the 
provisions  of  the  statute  creating  examining  boards,  although 
it  omits  a  provision  contained  in  the  previous  statute,  forbid- 
ding any  one  to  practise  except  those  who  had  complied  with 
the  law. 

Dowdell  V.  McBride,  45  S.W.,  397. 

A.,  charged  with  unlawful  practice  in  Ohio,  cannot  show 
that  the  examining  board's  refusal  of  a  certificate  was  improi> 


32  MEDICAL    ANNUAL. 

er;  nor  can  the  courts  review  the  action  of  the  board  in  exer- 
cising its  discretion  to  grant  or  refuse  certificates  of  a  right  to 
practise. 

Kowenstrot  v.  State,  8  Ohio  Dec,  119;  15  Ohio  Cir.,  73. 
(This  case  is  given  upon  the  authority  of  the  Ameri- 
can Digest;  the  report  itself  not  being  accessible.) 

In  Oregon,  an  appeal  lies  from  the  decision  of  the  examining 
board  to  the  Circuit  Court,  whose  judgment  may  in  turn  be 
appealed  from  by  the  board. 

The  State  is  a  proper  party  to  a  proceeding  to  revoke  licenses 
for  unprofessional  conduct  which  is  quasi-criminal  in  charac- 
ter; and  it  is  sufficient  to  serve  notice  of  appeal  upon  the  State 
without  serving  the  relators  or  the  board. 

The  provision  requiring  the  board  to  license  persons  pre- 
senting certificates  of  registration  within  ninety  days  from  the 
passage  of  the  Amendatory  Act  of  189 1,  is  mandatory. 
State  V.  Estes,  52  Pac,  571. 

The  Iowa  statute  authorizes  the  State  board  of  medical  ex- 
aminers to  revoke  medical  licenses,  among  other  causes,  "for 
palpable  evidence  of  incompetency."  Upon  a  petition  pur- 
porting to  be  signed  by  five  physicians,  accompanied  by  a 
certified  transcript  of  proceedings  before  a  coroner  in  the  case 
of  B.,  deceased,  and  asking  that  A.'s  certificate  be  revoked  for 
incompetency  therein  appearing,  the  board  furnished  A.  with  a 
copy  of  the  charges  against  him,  and  notified  him  to  appear 
and  answer  them.  Upon  his  failure  so  to  do,  the  board  upon 
such  documentary  evidence  revoked  his  certificate. 

Held,  that  the  board  had  jurisdiction  and  its  acts  could  not 
be  reviewed  on  certiorari.  At  most,  it  acted  upon  evidence 
that  might  have  been  excluded  if  objected  to. 

Traer  v.  State  Board  of  Med.  Exam.,  76  N.W,,  833. 

Pleading  and  Procedure. 

In  Ohio,  an  indictment  is  defective  if  it  only  charge  that  the 
accused  has  practised  without  a  certificate,  but  fail  (i)  to  allege 
that  he  has  omitted  to  do  those  acts  entitling  him  to  its  issu- 
ance, or  (2)  to  indicate  to  what  class  of  persons  described  in 
the  statute  he  belongs. 

State  V.  Morrill,  7  Ohio  Dec,  52. 

The  Rhode  Island  statute  forbidding  unlicensed  practice  of 


NOTES   OF    LEGAL    DECISIONS.  33 

medicine  provides  a  fine  only  in  cases  where  the  practice  is  for 
compensation. 

Held,  that  to  make  out  a  violation  of  the  statute  the  accused 
must  be  shown  to  have  received  reward  for  his  practice  {cf. 
Ham.,  p.  603). 

State  V.  Pirlot,  38  Atl.,  656. 
But  it  has  been  held  that  intent  to  receive  fees  is  equivalent 
to  actual  receipt  of  them. 

State  V.  Hale,  15  Mo,,  606  (cited  in  Ham.,  p.  603). 
In  New  York,  under  the  statute  regulating  the  practice  of 
veterinary  surgery — 

Held,  that  if  the  complaint,  in  an  action  for  a  penalty,  only 
allege  practice  at  a  certain  time  and  place  in  violation  of  the 
statute,  it  is  defective  as  stating  a  mere  legal  conclusion. 

Held,  also,  that  it  should  negative  the  exemptions  of  the 
enacting  clause, 

Steuben  Co.  v.  Wood,  24  App,  Div,,  442;    48  N,Y.S., 
471. 
In  Ohio  and  North  Carolina,  the  exemptions,  not  being  in 
the  enacting  clause,  need  net  be  negatived. 

Kowenstrot  v.  State,  15  Ohio  Cir.  Ct.  R.,  73.     Hale  v. 
State,  51  N.E.,  154.     State  v.  Call,  28  S.E.,  517. 
In  North  Carolina,  an  indictment  failing  to  allege  that  the 
accused  had  not  obtained  a  certificate  or  registered,  is  defective. 
But  it  need  not  allege  that  the  unlawful  practice  charged  was 
for  fee  or  reward,  although  a  special  verdict  must  find  that 
fact ;  nor  need  it  negative  the  exemptions  of  the  statute. 
State  V.  Call,  28  S.E.,  517  (supra). 

Imprisonment  for  Non-Payment  of  Fines. 

The  act  of  New  Mexico,  providing  that  defendant  adjudged 
in  an  action  of  debt  to  pay  a  forfeiture  for  unlawfully  practising 
medicine  may  be  imprisoned  on  default  in  payment,  is  valid. 
Re  Roe  Chung,  49  Pac,  952  (supra). 

II.  Fees — Compensation  (Ham.,  604). 

License  Presumed  in  Civil  Action. — If  A.,  practising  as 
a  physician,  attend  and  treat  ]^.  in  that  capacity,  his  authority 
so  to  practise  will  be  presumed  in  an  action  brought  to  recover 
3 


34  MEDICAL    ANNUAL. 

his  fees.  If  he  be  not  licensed  (or  registered),  the  burden  of 
proving  that  fact  is  upon  B.  In  criminal  cases  the  rule  is 
otherwise. 

Lacy  V.  Kossuth  County  (Iowa),  75  N.W.,  689. 
Compensation  for  Attending  County   Poor  at  Request  of 
Officials. — (See  below  "  Public  Health,"  sub-title  "  Com- 
pensation.") 

Value  of  Services — Evidence  of. — If  a  physician  renders 
professional  services  without  special  contract  as  to  the  amount 
of  remuneration,  and  brings  an  action  to  recover  their  value, 
a  fellow  physician  may  testify  whether  the  bill  is  reasonable 
or  not. 

Ward  V.  Ohio  River  &  C.  R.R.  Co.,  30  S.E.,  594. 
(It  may  be  noted  that  this  action  was  against  a  corporation, 
and  therefore  not  for  services  rendered  to  defendant  as  a  pa- 
tient. The  nature  of  the  services  does  not  appear,  and  the 
question  of  privilege  was  not  raised.  Where,  however,  a  phy- 
sician sues  a  patient  to  recover  the  value  of  services,  and  calls 
another  physician  to  testify  to  their  nature,  the  latter's  testi- 
mony will  be  inadmissible  if  it  violates  the  statutory  privilege 
of  the  patient  and  is  objected  to.) 

See  McGillicuddy  v.  Farmers'  Loan  and  Trust  Co., 
vifra,  under  "  Evidence,"  sub-title  "  Privilege  of  Pro- 
fessional Communications." 
Valueless  Services — Physician's  Failure  to  Inform  Pa- 
tient OF  His  Hopeless  Condition  is  a  Defence. — A.,  a  spe- 
cialist in  diseases  of  the  nose,  throat,  and  ear,  sued  B.  to  recover 
$160  fees.  B.  testified  that,  having  had  nasal  catarrh  for  ten 
years,  he  submitted  to  A.'s  treatment  for  some  months,  paid 
$122,  and,  experiencing  no  relief,  discontinued  it  for  a  year; 
thereafter  he  returned  to  A.,  saying  he  had  no  money  to  throw 
away,  but  was  willing  to  pay  well  if  he  could  be  cured.  A. 
said,  "  I  can't  tell  you  now,"  but  gave  sixty-five  treatments, 
saying  each  time,  "Your  nose  is  getting  along  beautifully, 
beautifully."  B.  still  complaining,  A.  said  he  was  going  to 
New  York  and  would  consult  Dr.  C.  in  the  case.  During  A.'s 
absence,  his  father,  also  a  physician,  gave  some  treatment,  and 
said  that  his  son  had  always  considered  the  case  incurable. 
On  A.'s  return,  B  said:  "I  can't  afford  to  take  your  treatment 
unless  you  can  cure  me."  A.  replied :  "  If  you  will  come  back 
now  I  can  cure  you.     I  can  perform  an  operation  in  your  head. 


NOTES   OF    LEGAL    DECISIONS.  35 

I  have  had  a  talk  with  Dr.  C.  about  this;  he  says  I  can  cure 
you."  A.  testified  that  he  had  treated  the  case  with  "  sprays 
and  trichloricetic  acid  so  as  to  allow  a  drainage  from  above  as 
much  as  possible,"  and  that  was  the  best  treatment  anybody 
knew;  that  on  his  return  he  told  B.  that  he  did  not  think  his 
case  would  improve  unless  he  submitted  to  an  operation  to 
open  the  frontal  sinus,  which  was  a  dernier  ressort,  practised 
only  in  extreme  cases,  and  sometimes  successful;  he  could  not 
say  that  it  would  have  cured  B.,  who  testified  that  he  had  im- 
proved in  general  and  local  condition  since  discontinuing  A.'s 
treatment.  On  appeal  from  a  judgment  for  plaintiff  on  a  ver- 
dict— 

Held,  granting  a  new  trial,  that  it  was  A.'s  duty  to  act  in 
utmost  good  faith  toward  B. ;  that,  while  a  physician  is  held 
only  to  reasonable  skill  and  knowledge  and  is  not  a  guarantor, 
the  law  will  not  countenance  quackery;  and  if  A.  should  have 
seasonably  discovered  in  the  exercise  of  such  skill  that  B.'s 
case  would  not  yield  to  the  usual  treatment,  or  probably  would 
not  be  benefited  by  it,  and  failed  so  to  advise  B.,  he  was  guilty 
of  negligence,  and  the  trial  court  erred  in  not  so  charging  the 
jury  whose  function  it  was  to  decide  whether  A.  had  not  dis- 
covered before  his  trip  to  New  York  that  his  treatment  was 
abortive. 

Held,  also,  that  if  A.'s  services  and  treatment  were  worthless 
and  ineffective  to  work  a  cure,  there  could  be  no  recovery  of 
compensation;  and  that  the  jury  should  have  been  charged 
that  if  B.'s  failure  to  reap  benefit  was  due  to  A.'s  lack  of,  or 
failure  to  exercise,  ordinary  knowledge,  skill,  and  care,  there 
could  be  no  recovery, 

Logan  V.  Field,  75  Mo,  App,  R,,  594, 

Autopsy,  by  Hospital  Officer,  Gratuitous  ;  Who  Is 
Such  Officer  (see  Ham,,  p,  613). — Under  the  Coroners'  Act 
of  1887  (50  and  51  Vict,  Ch.,  71),  the  medical  officer  of  a 
public  hospital  is  not  entitled  to  remuneration  for  making  a 
post-mortem  upon  a  patient  dying  therein  whom  it  was  his 
duty  to  attend,  or  for  testifying  in  regard  thereto. 

Held,  that  a  children's  and  general  hospital,  supported  by 
voluntary  contributions  and  founded  for  free  admission  of 
patients  within  a  certain  area,  and  admission  for  small  fees 
of  those  within  another  area,  is  a  public  hospital  within  the 
meaning  of  said  Act. 


36  MEDICAL    ANNUAL. 

Held,  also,  that  a  medical  man  practising  in  the  neighbor- 
hood of  the  public  hospital  and  appointed  honorary  medical 
officer  thereof,  although  receiving  no  fees  or  honorarium,  is  a 
medical  officer  of  a  public  hospital,  and  as  such  entitled  to  no 
fees  for  making  an  autopsy  or  testifying  in  the  case  of  a  per- 
son dying  therein. 

Horner  v.  Lewis,  67  L.J.R.,  Q.B.Div.,  524. 

Non-Payment  of  Fees  does  Not  Excuse  Withholding 
Death  Certificate. — A  registered  medical  practitioner  refused 
a  certificate  of  the  cause  of  child's  death  because  \2s.,  alleged 
to  be  due  him  as  fees,  were  unpaid.  The  child's  father  called 
seven  times  for  the  certificate;  and  eight  days  after,  the  coro- 
ner, to  prevent  public  scandal,  held  an  inquest.  The  doctor 
was  fined  40^'.  and  costs,  amounting  in  all  to  ^5  9^.  6d. 

London  Laia  Times,  April  2,  1898,  vol.  civ.,  p.  501. 

Arbitration  of  Fees  for  Services  to  Workingmen. — In 
England,  under  Workmen's  Compensation  Act  of  1897,  appli- 
cation for  arbitration  of  medical  fees  in  cases  of  deceased  work- 
men may  be  made  under  Workmen's  Compensation  Rules, 
1898. 

Weekly  Notes,  June  18,  1898,  p.  213. 

Held,  in  Maryland,  that  a  faith-curer  could  not  recover  for 
his  services — per  Wright,  J, 

Doty  7).  Winters,  Oct.  27,  1897  (suj)ra). 

III.  Malpractice. 

Who  are  Liable  in  Action  for  Malpractice. — If  A.,  holding 
himself  out  as  a  physician,  is  employed  by  B,  in  the  belief  that 
he  is  qualified  in  that  capacity,  and  thereupon  undertakes  to 
treat  B.  as  a  physician,  he  is  liable  for  injuries  resulting  from 
his  practice,  according  to  the  same  standard  required  by  the 
law  of  qualified  physicians. 

Matthei  v.  Wooley,  69  111.  App.,  654. 

Hospitals  (Ham.,  p.  613). — A.  went  as  a  pay  patient  to  a 
hospital  in  New  York  city,  maintained  as  a  charitable  insti- 
tution, and  was  there  operated  upon  by  B.,  her  private  physi- 
cian as  well  as  visiting  surgeon  on  the  hospital  staff.  While 
still  under  ether,  she  was  carried  to  her  room  and  placed  in  a 
bed,  from  which  the  nurse  in  attendance  had  neglected  to 
remove  an  uncovered  hot-water  bag.    Her  right  leg  was  burned 


NOTES    OF    LEGAL    DECISIONS.  37 

SO  badly  as  to  necessitate  an  operation.  Her  sister  had  made 
special  arrangements  for  a  trained  nurse  at  $3  a  day.  The 
nurse  whose  carelessness  led  to  the  injury  had  entered  the 
institution  eight  months  before,  begun  a  two-years'  course  of 
instruction,  been  instructed  in  the  use  of  hot-water  bags,  and 
given  satisfaction  in  other  surgical  cases.  A.  sued  the  hospi- 
tal for  damages. 

Held  (at  trial  term,  dismissing  the  complaint  and  refusing  to 
plaintiff  a  new  trial),  that  the  case  was  one  of  tort,  not  con- 
tract, and  that  defendant  was  liable  only  for  negligence  in  the 
original  selection  of  its  servants,  but  not  for  their  subsequent 
acts  if  they  were  properly  chosen — unless  knowledge  of  the 
servant's  unfitness  was  brought  home  to  the  corporation ;  the 
institution  being  of  a  charitable  nature,  notwithstanding  it  re- 
ceived pay  patients,  since  the  money  of  the  latter  went  to  support 
the  hospital  and  not  to  make  dividends. 

As  to  whether  a  charitable  hospital  is  liable  for  negligence 
in  selection  of  nurses  other  than  the  head  nurse, — Query? 
Ward  V.  St.  Vincent's  Hospital,  23  Misc.,  91. 

Question  for  Jury — What  Knowledge,  Skill,  Care,  and 
Judgment  are  Required? — (Ham.,  p.  605;  vol.  ii.,  pp. 
573-583). — The  facts  of  the  following  case,  stated  with  un- 
usual detail  by  the  court,  are  substantially  as  follows:  On 
May  2,  1888,  A.,  forty-four  years  old,  in  good  health,  frac- 
tured the  right  patella.  He  drove  two  and  one-half  miles  to 
the  office  of  B.,  a  physician  and  surgeon,  in  whose  absence 
B.'s  father,  also  a  physician  and  surgeon,  applied  strips  of 
adhesive  plaster  on  each  side  of  the  calf,  running  them  over 
the  knee  to  the  thigh,  bandaged  the  leg,  applied  a  splint  eigh- 
teen inches  long,  and  bandaged  again.  A.  walked  to  his 
wagon  and  drove  home  over  a  rough  road.  On  the  way,  band- 
age and  splint  loosening,  A.  at  home,  with  his  wife's  aid, 
tightened  them  as  best  he  could.  On  May  8th,  nothing  having 
been  done  meantime,  A.  sent  for  B.  and  told  him  what  his 
father  had  done  and  what  happened  subsequently.  The  knee 
was  then  swollen  to  the  thigh's  size.  B.  removed  bandages 
and  splint,  examined  the  hurt,  diagnosed  it  as  rupture  of  the 
ligaments,  and  bade  plaintiff  lie  quietly  in  bed  until  they 
united,  whicli  might  take  eight  weeks.  Bandages  and  splint 
were  off  for  half  an  hour,  while  B.  measured  both  legs  with 
tape  and  rule,  finding  half  an  inch  difference.     B.  washed  the 


38  MEDICAL    ANNUAL. 

parts,  and  replaced  the  bandages  and  splints  about  as  his  father 
had  done — not  in  the  8-shape  nor  by  attaching  the  bandages  to 
the  splint's  ends.  No  means  were  used  to  steady  the  leg  below 
the  splint;  but,  after  placing  the  foot  on  some  cushions  resting 
upon  a  board  at  the  bed's  foot,  B.  departed,  promising  to  return 
with  a  longer,  better  splint.  He  returned  three  days  after, 
removed  splint  and  bandages,  treated  the  leg  for  about  half  an 
hour,  bathed  it  in  warm  water,  restored  the  bandages,  and 
applied  a  splint  reaching  farther  up  the  leg  and  down  to  the 
heel,  where  he  wrapped  the  outer  bandage  around  the  foot  and 
fastened  it;  the  leg  being  still  swollen,  nothing  was  done  to 
reduce  the  swelling  except  as  stated.  In  all,  B.  made  five 
visits — two  the  first  week,  and  the  others  on  May  26th  and  30th 
and  June  7th.  On  the  last  day  he  put  back  the  short  splint 
and  told  A.  that  he  might  go  about  his  business  as  assessor, 
but  to  be  careful  not  to  hurt  the  leg,  as  if  he.  A.,  were  thrown 
from  his  wagon  or  hurt  by  his  own  negligence,  he,  B.,  did  not 
wish  to  be  responsible.  B.  also  said  A.  might  walk  about  the 
house  with  the  short  splint  on.  A.  did  so  walk,  and  went  out 
two  or  three  days  in  a  buggy  on  his  business;  during  which 
time,  he  said,  his  leg  was  not  injured,  his  heel  resting,  while 
driving,  upon  boards  arranged  on  the  dash-board.  The  roads 
were  rough  and  likely  to  cause  jolting,  and  B.  knew  their  con- 
dition. At  no  time  were  efforts  made  to  unite  the  patella's 
fracture.  The  strips  of  adhesive  plaster  first  applied  remained 
until  June  15th,  when  A.  calling  pursuant  to  directions  at  B.'s 
office,  B.  removed  them,  and,  without  trying  to  keep  the  parts  of 
the  patella  together,  tried  to  flex  the  still  swollen  leg,  washed  it, 
put  it  in  the  short  splint  again,  saying  that  ligamentous  union 
had  begun,  gave  a  liniment  for  use,  bade  A.  work  and  flex  the 
leg,  showed  him  how  to  apply  the  splint  and  bandages,  but 
gave  no  directions  as  to  how  to  keep  the  patella's  parts  together 
while  working  the  leg.  Thereafter  nothing  was  put  on  except 
the  short  splint  and  bandage.  B.  made  no  objection  to  A.'s 
going  about  his  business,  but  said  the  leg  was  doing  well.  On 
the  following  Saturday  A.  called  at  B.'s  office  again,  where  B. 
treated  the  leg  as  before:  took  it  across  his  knee,  tried  to  work 
it,  said  if  it  didn't  loosen  up  he  would  give  A.  ether  and 
"break  the  damn  thing  down,"  and  bade  A.  use  skunk's  oil — 
which  A.  did;  whereafter  the  knee  ''  began  to  loosen  up  some," 
and  the  upper  part  of  the  patella  "began   to  slip  up  some." 


NOTES   OF    LEGAL   DECISIONS.  39 

About  July  15th,  A.  told  B.  that  his  leg  was  not  set  right,  as 
there  was  space  between  the  parts  of  the  patella.  B.  read  from 
a  surgical  work  to  prove  that  it  was  all  right.  In  August  A. 
asked  if  he  could  do  haying,  and  B.  said  it  would  hurt  him  no 
more,  if  he  was  careful,  than  walking  around.  A.  therefore 
rode  on  the  mowing  machine  a  few  days,  being  careful  not  to 
hurt  his  leg.  From  June  15th  until  the  splint's  removal  in 
September,  A.  visited  B.'s  office,  and  was  told  every  time  that 
the  leg  was  doing  well.  About  March  i,  1889,  A.,  learning 
from  another  surgeon  that  the  patella  was  fractured,  again  told 
B.  that  the  leg  was  not  set  right.  B.,  on  examination,  admitted 
for  the  first  time  that  the  knee-cap  was  broken,  and  later  in  the 
spring  said  to  A.  that  "  the  leg  was  not  worth  a  damn,  and  he 
would  have  to  go  into  something  else  besides  farming." 

A.  brought  an  action  against  B.  to  recover  damages  for  mal- 
practice, testified  that  the  leg  still  at  the  time  of  trial  hurt  very 
much  in  driving;  that  he  could  work  very  little  on  the  farm, 
and  could  not  walk  on  rough  ground  without  turning  the  ankle, 
or  plough,  drag,  or  walk  on  ploughed  ground  to  any  extent;  that 
he  could  not  lift  half  so  much  as  before  the  accident,  and  not 
lift  at  all  unless  he  stood  straight;  that  he  could  not  hold  his 
leg  up;  that  he  was  informed  by  physicians  that  there  was  no 
ligamentous  union;  and  that,  relying  upon  B.'s  statement  that 
the  leg  was  getting  on  all  right,  he  had  not  consulted  any  other 
physician.  Expert  testimony  went  to  show  that  while  fracture 
of  the  patella  is  not  common,  rupture  of  the  ligaments  con- 
nected with  it  is  very  uncommon ;  that  powerful  muscles  ex- 
tending from  its  upper  and  lower  portions  hold  it  in  place, 
which  muscles  cannot  be  controlled  by  strips  of  adhesive  plas- 
ter if  the  leg  is  flexed;  that  in  treating  the  injurj^  it  is  necessary 
to  know  what  it  is,  and  to  reduce  the  swelling;  that  a  fractured 
patella  might  be  united  if  there  were  some  swelling,  but  with 
difficulty  if  a  knee  was  swollen  as  large  as  a  thigh,  when  it 
would  be  hard  to  know  if  the  parts  had  been  brought  together 
or  not;  that  in  such  a  fracture,  broken  parts  should  be  placed 
and  kept  in  apposition,  the  patient  remaining  perfectly  quiet 
for  eight  or  ten  weeks  until  strong  ligamentous  union  takes 
place,  and  thereafter  the  leg  should  be  used  very  carefully  until 
the  ligaments  grow  strong  enough  not  to  rupture;  that  a  splint 
should  be  used  as  soon  as  possible,  and  not  changed  for  some 
time,  so  as  to  prevent  separation  of  the  bony  parts,  and  not 


4©  MEDICAL    ANNUAL. 

removed  during  examinations,  which  should  be  frequent,  to 
ascertain  whether  reseparation  has  occurred;  that  the  leg 
should  not  be  flexed  for  eight  or  ten  weeks;  that  when  flexed 
the  patella  should  be  supported  in  both  directions  by  pressure; 
that  the  splints  should  be  kept  on  for  about  a  year — the  long 
splint  for  two  or  three  months,  and  thereafter  a  short  one;  that 
a  splint  from  the  centre  of  the  thigh  to  the  middle  of  the  leg 
would  not  serve  to  keep  the  leg  quiet;  that  the  patient  should 
not  work  or  use  the  leg  much  for  a  year,  or  do  active  work  for 
a  year  and  a  half;  that  it  would  be  contrary  to  practice  to 
allow  one  sustaining  such  a  fracture  in  May  to  assist  at  har- 
vest wearing  a  short  splint  or  to  ride  over  rough  roads  in 
June,  as  such  action  would  probably  break  up  adhesions;  that 
it  was  contrary  to  usual  practice  after  putting  on  a  long  splint 
to  remove  it,  leaving  the  patella  and  leg  without  other  support 
than  adhesive  plaster;  and  that  there  should  be  pressure  when 
the  bandages  are  removed.  It  appeared  at  the  time  of  trial 
that  the  fractured  parts  were  2  Yz  inches  apart  when  the  leg  was 
flexed,  and  1^2  when  extended;  that  neither  bony  nor  liga- 
mentous union  had  taken  place;  and  that  the  result  was  bad, 
although  in  such  cases  it  is  usually  good. 

There  was  of  course  conflict  in  evidence,  but  the  court  con- 
sidered that  the  jury  might  have  found  legitimately  the  facts  as 
above  stated,  if  taking  the  view  of  it  most  favorable  to  plain- 
tiff, as  the  court  was  obliged  to  do — the  complaint  having  been 
dismissed  at  trial.  The  Court  of  Appeals,  therefore,  upon  the 
ground  that  the  conflict  of  evidence  presented  facts  for  the 
determination  of  the  jury,  reversed  the  judgment  and  ordered 
a  new  trial,  saying  that  "  the  law  relating  to  malpractice  is 
simple  and  well  settled,  although  not  always  easy  of  applica- 
tion "  ;  that  a  physician  is  bound  to  possess  "  that  reasonable 
degree  of  learning  and  skill  that  is  ordinarily  possessed  by 
physicians  and  surgeons  in  the  locality  where  he  practises,  and 
which  is  ordinarily  regarded  by  those  cognizant  of  the  employ- 
ment as  necessary  to  qualify  him  to  engage  in  the  business  of 
practising  medicine  and  surgery  "  ;  that  he  is  bound  to  exercise 
and  apply  his  skill  and  learning  to  accomplish  the  purpose  of 
his  employment,  and  to  use  his  best  judgment  in  so  doing, 
being  liable  in  law  for  injuries  resulting  from  failure  to  fulfil 
any  of  these  obligations;  that  he  need  not  possess  extraordi- 
nary learning  and  skill,  but  only  that  degree  possessed  by  the 


NOTES   OF    LEGAL    DECISIONS.  41 

average  member  of  his  profession  in  good  standing — being 
bound,  however,  to  keep  abreast  of  the  times,  and  at  the  same 
time  liable  for  injuries  resulting  from  "a  departure  from  ap- 
proved methods  in  general  use,"  however  good  his  intentions; 
that  he  need  not  exercise  the  highest  degree  of  care  ever  exer- 
cised, either  by  himself  or  others,  providing  that  he  does  exer- 
cise ordinary  and  reasonable  care;  that  while  he  must  exercise 
his  best  judgment  after  careful  examination,  he  is  not  liable 
for  a  mere  error  of  judgment;  and,  finally,  that  his  contract  is 
not  to  guarantee  good  results,  but  "  to  use  the  skill  and  learning 
of  the  average  physician,  to  exercise  reasonable  care  and  to 
exert  his  best  judgment  in  the  effort  to  bring  about  a  good 
result." 

Pike  V.  Honsinger,  155  N.  Y.,  201. 

(The  above  case  has  been  stated  thus  fully  as  being  the  latest 
utterance  of  the  New  York  Court  of  Appeals  upon  this  topic  of 
vital  interest  to  medical  men.  The  cases  cited  by  the  court 
are,  with  one  exception,  among  those  cited  in  Hamilton  (pp. 
605,  606),  and  if  any  criticism  may  be  ventured,  it  is  that  the 
use  by  the  learned  court  of  the  words  "  in  the  locality  where  he 
practises"  is  misleading — as  was  pointed  out  in  Gramm  v. 
Boener,  56  Ind.,  497  (Ham.,  p.  606);  for  it  is  very  possible 
that  the  defendant  in  a  malpractice  case  might  be  the  only 
practitioner  in  his  locality;  or,  although  grossly  incompetent, 
even  by  the  standard  of  similar  localities,  he  might  be  superior 
to  other  practitioners  of  his  neighborhood.  The  Court  of  Ap- 
peals, however,  seems  to  have  negatived  this  unfortunate 
phrase  by  its  subsequent  holding  that  the  standard  is  the  qual- 
ification of  "  the  average  member  of  the  medical  profession  in 
good  standing." 

In  an  Iowa  case,  VVhitesell  v.  Hill,  loi  Iowa,  629;  70  N.W., 
750  (April,  1897),  it  was  held  that,  while  the  correct  rule  is 
that  a  physician  should  possess  the  skill,  etc.,  of  the  average 
practitioner  in  shni/iir  localities  to  that  of  his  practice,  never- 
theless to  charge  that  he  should  have  the  skill,  etc.,  of  the 
profession  "generally  in  the  vicinity  of  where  the  defendant 
practised,"  was  not  reversible  error,  in  this  particular  case,  be- 
cause it  appeared  in  evidence  that  several  educated  and  experi- 
enced physicians  practised  in  defendant's  neighborhood.) 

So  as  to  Dentistry. — In  North  Carolina,  a  month  later 
than  Pike's  case  (April,  1898),  it  was  held  that  a  dentist  must 


1/ 


V  ' 


42  MEDICAL    ANNUAL. 

exercise  the  care  and  skill  of  the  profession  generally,  and  not 
of  his  particular  locality  only. 

McCracken  v.  Smathers,  29  S.E.,  354. 

A  case  somewhat  resembling  Pike  v.  Honsinger  in  its  facts, 
and  involving  the  same  legal  principles,  was  decided  shortly 
before  (in  December,  1897),  by  the  Supreme  Court  of  Nebraska. 
On  July  4, 1890,  plaintiff  fractured  the  patella,  and  immediately 
called  Dr.  A.,  who  dressed  the  wound  and  applied  a  temporary 
splint.  Plaintiff  was  taken  home,  and  at  night  called  Dr.  B., 
who  applied  adhesive  plasters  to  the  knee,  put  it  in  roller 
bandages  and  a  fracture-box,  and  continued  to  visit  and  treat 
plaintiff.  On  July  7th  Dr.  B.  requested  Drs.  C.  and  D.  to 
examine  the  wound,  and  one  of  them  advised  making  incisions 
in  the  skin  and  flesh  of  the  knee  and  binding  the  fractured 
parts  together  with  silver  wire;  and  on  July  loth,  in  company 
with  B.  and  a  layman,  C.  and  D.  performed  the  operations,  in 
the  course  of  which,  owing  to  a  movement  of  plaintiff's  leg,^ 
one  of  them  broke  a  drill,  its  point  being  left  in  the  knee-cap. 
On  July  14th,  22d,  and  25th,  and  Aug.  ist,  but  not  after  the 
last  date,  C.  and  D.  visited  plaintiff,  who  did  not  get  well  until 
the  spring  of  1891,  when  other  surgeons  performed  an  opera- 
tion. He  brought  action  against  C.  and  D.,and  at  trial  estab- 
lished permanent  injury,  viz.,  shrinkage  of  the  muscles  of  the 
thigh  and  leg,  and  stiffness  and  enlargement  of  knee-joint. 
Upon  appeal  from  a  judgment  for  defendants — 

Held,  that  the  evidence  being  conflicting,  it  was  properly  for 
the  jury  to  decide  the  following  issues :  (i)  Whether  defendants 
promised  (^a)  to  make  a  perfect  cure,  {U)  to  continue  in  attend- 
ance until  plaintiff  should  recover,  (2)  Whether  the  wiring 
method  was  proper;  on  which  issue,  experts,  as  usual,  testified 
on  both  sides.  (3)  Whether  it  was  negligent  to  leave  the  piece 
of  drill  in  the  bone;  on  this  issue,  also  experts  testified — some 
that  the  practice  was  improper,  and  others  that,  owing  to  the 
inflamed  condition  of  the  knee,  plaintiff's  high  temperature, 
and  rapid  pulse,  the  fragment  could  not  have  been  removed 
without  danger  of  breaking  the  bone ;  and  therefore,  as  it  was 
well  antisepticized,  to  leave  it  was  proper.  (4)  Whether  it 
was  negligent  not  to  inform  plaintiff  that  the  drill's  point  was 
in  his  knee;  on  this  issue  the  jury  found  that  defendants  in 
good  faith  believed  that  the  fragment's  presence  would  not 
harm  the  knee,  if  plaintiff  were  ignorant  of  it,  whereas  if  he 


NOTES   OF    LEGAL    DECISIONS.  43 

knew  of  it  his  anxiety  might  work  injury;  and  this  being  so, 
the  mere  fact  that  they  were  mistaken  in  opinion  was  not  ground 
to  hold  them  negligent  as  matter  of  law.  And  the  court  laid 
down  the  rule  of  law  that  surgeons  are  not  held  to  a  standard 
of  infallibility,  or  required  to  use  the  utmost  possible  skill  and 
care,  but  that  they  need  exercise  only  "  that  degree  of  knowl- 
edge and  skill  ordinarily  possessed  by  members  of  their  pro- 
fession." Other  issues  involved  related  to  legal  practice,  and 
are  not  of  medical  interest. 

Van  Skike  v.  Potter,  73  N.W.,  295. 

Duty  to  Inform  Patient  of  Misadventures. — A.,  perform- 
ing a  surgical  operation,  broke  a  needle,  and  failed,  after 
careful  search,  to  find  a  fragment.  Subsequently  he  had  to 
abandon  the  case,  and  did  so  without  informing  the  patient 
or  her  friends  that  the  fragment  remained  in  her  body.  The 
patient  thereafter  suffering  much  pain,  another  practitioner, 
operating  to  remove  cicatricial  tissue,  found  the  fragment 
encysted  and  harmless.  There  was  testimony  that  the  patient's 
pain  could  not  have  resulted  from  the  presence  of  the  encysted 
needle.  The  jury  were  instructed  that  a  physician  is  only 
bound  to  possess,  display,  and  exercise  the  knowledge,  skill, 
and  care  usual  among  medical  men  of  good  standing  in  his 
community. 

Held,  that  a  verdict  for  defendant  should  be  sustained. 

Eislein   v.  Palmer,  7   Ohio  Dec,  365  ;    cf.  Van  Skike 
V.  Potter  {supra). 

Whether  Liability  in  Damages  Arises  from  a  Mistake, 
Is  A  Question  for  the  Jury. — A.,  after  treating  B.  at  intervals 
from  October,  1896,  to  May,  1897,  for  malady  of  his  right  leg, 
advised  an  operation.  B.  went  to  hospital  on  May  nth.  On 
May  12  th  a  nurse  shaved  and  prepared  the  right  leg  for  an 
operation  at  B.'s  direction,  and  a  hospital  surgeon  administered 
chloroform.  Both  legs  were  affected  and  swollen.  In  the 
operating-room,  A.  said  that  the  wrong  leg  had  been  prepared, 
and  directed  the  preparation  of  the  left  leg.  He  asked  B.'s 
brother  which  leg  was  to  be  operated  on.  The  latter  said  he 
did  not  know,  but  would  telephone  to  his  folks.  A.  said  all 
right.  Meantime  B.'s  father  came  to  the  hospital,  and  A., 
pointing  to  the  right  leg,  said:  "Is  that  the  right  leg?  "  The 
father  answered :  "No;  the  other  leg."  Whereupon  A.  oper- 
ated upon  the  left  leg.     B.,  coming  out  of  the  anaesthesia,  was 


44  MEDICAL    ANNUAL. 

asked  by  A.  what  leg  he  wished  operated  on,  and  said  the 
right.  A.  answered :  "  I  thought  it  was  the  left ;  you  told  me 
downstairs  it  was  the  left."  B.  suffered  much  pain  from  the 
left  leg  after  the  operation.  Five  weeks  later,  A.  operated 
upon  the  right  leg,  which  gave  no  pain  after  the  operation. 
B.  sued  A.  for  negligence,  and  the  court  directed  a  verdict  for 
defendant. 

Held,  reversing  the  judgment,  that  it  was  for  the  jury  to  say 
whether  upon  the  facts  A.  had  exercised  due  care. 
Sullivan  71.  McGraw,  76  N.W.,  149  (Mich.). 

Abandonment  of  the  Case. —  Where  plaintiff  alleged  an 
agreement  to  visit  and  treat  him  until  recovery. 

Held,  that  under  a  general  denial,  defendants  might  show 
that  upon  their  last  visit  they  told  plaintiff  that  they  would 
not  return  unless  requested  to  do  so,  and  that  they  had  not  been 
so  requested. 

Van  Skike  v.  Potter  {sicprd). 

Proximate  Cause — Obstetrics. — A.  delivered  B,  of  a  five- 
months  foetus  on  Oct.  29,  1891,  and  attended  her  until  Nov. 
20th.  On  Oct.  30th  he  removed  the  placenta,  but  left,  as  B. 
alleged,  a  piece  2  inches  long  and  yi  of  an  inch  thick,  which 
putrified  and  produced  blood-poisoning  and  a  septic  condition 
resulting  in  gangrene  of  the  left  leg,  which  had  to  be  ampu- 
tated. The  piece  of  afterbirth  was  found  at  the  mouth  of  the 
womb  and  removed  by  another  physician,  three  weeks  after 
delivery.  B.  sued  A.,  and  her  action  was  dismissed  on  the 
ground  that  there  was  (a)  no  evidence  when  blood-poisoning 
commenced;  {h)  no  proof  that  she  would  not  have  lost  her  leg 
if  all  the  afterbirth  had  been  removed;  (c)  that  failure  to  re- 
move it  was  not  negligence. 

Held,  reversing  judgment  for  defendant,  that  upon  the  evi- 
dence the  question  of  negligence  was  for  the  jury. 

Moratzsky  v.  Wirth,  67  Minn.,  46;  69  N.W.,  480  (Dec, 
1896). 

(Although  the  above  case  is  reported  in  December,  1896,  it 
again  recurs  in  the  reports  under  date  of  Nov.  3,  1898,  upon  the 
point  of  expert  evidence  (see  that  head  infra).  The  new  trial 
granted  as  above  resulted  in  a  verdict  of  $1,800  for  the  plain- 
tiff, which  was  sustained  on  appeal,  although  the  court  admitted 
that  a  verdict  for  the  defendant  might  have  been  properly 
rendered.     76  N.W.,  1,032.) 


NOTES   OF    LEGAL    DECISIONS.  45 

Proximate  Cause  —  Anaesthetics. —  B.  and  C.  undertook 
to  reduce  a  dislocation  of  A.'s  shoulder,  and  administered  to 
him  chloroform,  under  the  influence  of  which  he  died.  A.'s 
administratrix  having  brought  an  action  to  recover  damages 
for  alleged  malpractice,  the  court  found  the  main  question  to 
be:  "Did  the  deceased  die  from  suffocation  produced  by  the 
use  of  an  undue  quantity  or  excessive  dose  of  chloroform  or 
from  its  improper  administration?"  At  the  operation  only 
the  physicians  and  decedent's  son  were  present,  and  their  tes- 
timony was  contradictory  to  his.  The  only  expert  physician 
called  by  the  plaintiff  answered  to  a  hypothetical  question, 
summarizing  the  son's  testimony,  that  he  could  not  assign  the 
cause  of  death.  A  physician  attending  the  autopsy  and  called 
by  defendant  was  of  opinion  that  death  resulted  from  calcareous 
degeneration  of  the  heart,  but  said  it  might  have  been  due  to 
the  shock  and  pain,  or  to  an  overdose  of  chloroform.  Two 
other  physicians  were  of  opinion  from  the  condition  of  the 
lungs  that  death  did  not  result  from  suffocation  or  strangula- 
tion, but  from  calcareous  degeneration.     Verdict  for  plaintiff. 

Held,  on  appeal,  reversing  the  judgment,  that  upon  the  tes- 
timony the  most  that  could  be  said  was  that  the  cause  of  death 
was  doubtful,  and  attributable  as  much  to  one  cause  as  to 
another,  and,  therefore,  that  plaintiff  had  failed  to  sustain  the 
burden  upon  her  of  proving  that  the  proximate  cause  of  death 
was  the  negligence  or  malpractice  of  defendants. 

Yaggle  V.   Allen,  24  App.  Div.,  594;  cf.  Moratsky  v. 
Wirth,  mfra,  under  head  of  "  Experts." 

Contributory  Negligence — Dentists.  Elements  of  Dam- 
age.— In  her  action  for  damages  A.  alleged  two  acts  of  den- 
tal malpractice:  (i)  Filling  upon  a  live  nerve  without  proper 
packing;  (2)  improperly  and  unnecessarily  boring  through  the 
jaw-bone  after  plaintiff  had  returned  for  treatment.  Defendant 
asked  the  court  to  charge  that  if  the  jury  found  that  defendant 
had  advised  plaintiff  to  return  for  treatment  if  the  tooth  trou- 
bled her,  and  she  did  not  do  so,  such  disregard  of  instructions 
was  negligent  on  her  part  and  she  could  not  recover;  the  court 
so  charged,  adding:  "Provided  the  defendant  used  ordinary 
skill  and  his  best  judgment." 

Held,  affirming  judgment  for  plaintiff,  that  plaintiff's  negli- 
gence could  not  have  caused  the  injuries,  that  the  question  of 
her  contribution  to  them  was  fairly  put  to  the  jury,  and  that  if 


46  MEDICAL    ANNUAL. 

a  practitioner  fail  to  have  and  exercise  proper  knowledge,  skill, 
and  care  according  to  his  best  judgment,  the  patient's  neglect 
to  obey  his  instructions  at  most  only  mitigates  damages,  but 
does  not  afford  a  full  defence  to  the  action  for  malpractice. 

Held,  also,  that  the  question  whether,  if  a  patient  failed  to 
obey  instructions  to  return  within  a  week,  it  was  the  dentist's 
duty  to  seek  him,  or  at  what  times  the  relation  of  physician 
and  patient  ceases,  was  too  general  and  inadmissible. 

Held,  also,  that  in  assessing  damages  the  jury  might  con- 
sider the  patient's  pain,  loss  of  time,  permanence  of  injury, 
delay  in  effecting  cure,  and  loss  of  teeth. 

McCracken  v.  Smathers,  29  S.E.,  354. 

Measure  of  Damages  as  Affected  by  Patient's  Refusal 
TO  Submit  to  an  Operation.  Right  of  Patient  So  to  Re- 
fuse.— A.,  injured  by  a  fall  in  the  street,  sued  the  city.  It 
appeared  that  on  the  morning  after  his  accident  the  hospital 
surgeon  advised  an  operation  for  hernia,  and  A.  admitted  that 
in  refusing  it  he  was  mistaken.  Defendant  contended  that  the 
refusal  was  unreasonable,  and  at  its  request  the  court  charged 
the  jury  that  if  the  plaintiff  declined  to  act  upon  the  advice  of 
the  house  surgeon  and  submit  to  an  operation  for  the  radical 
cure  of  his  hernia,  the  defendant  was  not  chargeable  with  the 
consequence  of  his  refusal. 

Held,  sustaining  judgment  for  plaintiff,  that  this  statement 
of  the  law  was  more  favorable  to  defendant  than  needful ;  that 
"  the  plaintiff  was  not  required  to  submit  blindly  to  profes- 
sional advice.  He  was  entitled  and  bound  to  exercise  reason- 
able judgment;  and  if  his  conduct  was  that  of  a  reasonably 
prudent  man,  he  was  within  his  rights  in  refusing  to  submit  to 
an  operation,  and  cannot  be  charged  with  negligence  in  that 
respect." 

Williams  v.  City  of  Brooklyn,  2,Z  App.  Div.,  539. 

Evidence  in  Malpractice  and  Negligence  Cases — A  phy- 
sician who  has  examined  plaintiff  may  testify  (i),  as  matter  of 
opinion,  that  the  latter  could  not  well  have  feigned  his  illness, 
or,  without  the  use  of  chloroform,  have  sustained  an  operation 
that  was  performed;  and  (2),  as  matter  of  fact,  that  plaintiff 
was  confined  to  his  bed  and  unable  to  walk  without  aid, 

M.  K.  &  T.  Ry.  Co.  v.  Wright,  47  S.W.,  56  (Texas). 

So  in  an  action  charging  surgical  malpractice  in  the  ampu- 
tation of  plaintiff's  leg,  non-expert  witnesses  may  testify  as  to 


NOTES   OF    LEGAL    DECISIONS.  47 

their  observations  of  the  leg's  condition,  so  long  as  they  con- 
fine themselves  to  statements  of  fact  and  do  not  express  opin- 
ions. 

Williams  v.  Nally,  45  S.W.,  874  (Ky). 
(See  below  under  title  "Evidence,"  sub-title  "Experts.") 

Evidence  of  Medical  Qualifications It  is  not  allowable 

to  show   a  physician's   incompetency  by   proof  of    improper 
treatment  of  particular  cases.     His  reputation  for  skill  or  lack 
of  it  must  be  shown  by  the  testimony  of  persons  who  know 
what  that  reputation  is  in  the  community  wherein  he  practises. 
Lacy  V.  Kossuth  Co.,  75  N.W.,  689  (Iowa). 
Pleading.— Although  plaintiff  fail  to  allege  in  an  action 
of  malpractice  his  own  freedom  from  negligence,  the  defect  is 
cured  if  subsequent  pleadings  present  that  issue. 
Williams  v.  Nally,  45  S.W.,  874  {supra). 


IV.  Evidence. 

Privilege  of  Professional  Confidences.  (Ham.  pp.  616- 
632). — A.,  having  fallen  in  a  village  street,  brought  an  action 
to  recover  damages  for  alleged  resulting  injuries,  viz.,  umbili- 
cal hernia,  prolapsus  uteri,  and  divers  bruises.  Defendant 
sought  to  show  by  B.,  her  physician,  that  she  had  umbilical 
hernia  before  the  action.  B.  testified  that  what  he  knew  of  her 
condition  he  had  learned  while  attending  her  in  his  profes- 
sional capacity,  and  that  such  information  was  necessary  to 
enable  him  easily  and  understandingly  to  treat  the  case.  His 
attendance  had  lasted  over  eight  or  ten  years,  including  two 
cases  of  childbirth.  Defendant's  counsel  contended  that  if  B. 
discovered  the  hernia  while  attending  in  childbirth,  but  did 
not  treat  the  patient  for  it  or  need  his  knowledge  of  it  to  ena- 
ble him  to  deliver  the  child,  the  statutory  privilege  did  not 
attach  to  the  information,  and  the  doctor  might  testify.  The 
trial  court  excluded  his  testimony,  and  upon  appeal  from  a 
judgment  of  $2,500  in  A.'s  favor — 

Held,  that  the  evidence  was  properly  excluded,  B.  having 
acquired  his  information  while  acting  in  a  professional  capac- 
ity, and  the  discovery  of  the  hernia  being  a  necessary  incident 
of  the  investigation  made  to  enable  him  to  act  in  that  capacity. 
Nelson  v.  Village  of  Oneida,  156  N.  Y.,  219. 


48  MEDICAL    ANNUAL. 

(Cf.  to  the  same  purport,  Lammiman  v.  Detroit  Citizens'  Ry. 
Co.,  71  N.W.,  153  Mich.,  May,  1897), 

A.  sued  as  administrator  to  recover  damages  for  his  intes- 
tate's death  from  injuries  due  to  a  fall  on  the  city's  street. 
Decedent  was  attended  by  several  physicians,  one  of  whom 
A.  called  as  plaintiff's  witness.  Defendant  then  called  the 
others  to  testify  as  to  decedent's  condition. 

Held,  that  under  the  Iowa  code  the  testimony  of  defendant's 
said  witnesses  as  to  what  information  they  obtained  in  treating 
decedent  was  properly  excluded ;  as  was  also  a  question  ad- 
dressed to  one  of  them,  asking  if  decedent  had  not  inquired  of 
him  whether  the  injury  to  her  hip  might  not  have  been  due  to 
another  cause. 

Baxter  v.  City  of  Cedar  Rapids,   103    Iowa,   599;    72 
N.W.,  790  (October,  1897). 

All  statements  made  to  a  physician  and  necessary  to  enable 
him  to  treat  a  patient  intelligently  are  privileged  communica- 
tions. 

Kenyon  v.  City  of  Mondovi,  73  N.W.,  314  (Wise). 

Communications  by  a  Prisoner  Not  Privileged.  —  Defen- 
dant, charged  with  murder,  was  attended  medically  in  prison 
by  A.  up  to  the  day  before  the  latter  was  called  as  a  witness. 

Held,  that  A.  might  testify  as  to  conversation  with  defendant, 
after  the  termination  of  his  professional  relations,  upon  topics 
not  relating  to  defendant's  health,  and  as  to  differences  between 
the  appearance  of  defendant  in  and  out  of  court. 
People  V.  Koerner,  154  N.  Y.,  355. 

Decedent's    Estate.  —  In   an   action  against  a   decedent's 
estate  to  recover  the  value  of  services,  the  testimony  of  a  phy- 
sician upon  that  issue  is  not  competent,  if  his  testimony  was 
acquired  in  attendance  upon  deceased  in  a  professional  capacity. 
Re  Johnson,  32  App.  Div.,  634. 

(The  above  proposition  is  stated  broadly  in  the  opinion,  but 
the  court  held  that  its  rulings  upon  other  points  obviated  the 
need  of  passing  upon  this  one.  Its  expression,  therefore,  may 
be  regarded  as  obiter.  Under  sec.  834  of  the  code,  it  is  not 
sufficient  to  make  information  privileged  that  it  should  have 
been  acquired  in  professional  attendance,  unless  also  iiecessary 
to  enable  the  physiciaji  to  act  in  his  professional  capacity.) 

A.  sued  B.,  a  trust  company,  and  temporary  administrator  of 
a  deceased  patient,  to  recover  $24,700,  less  a  small  credit. 


NOTES    OF    LEGAL    DECISIONS.  49 

which  plaintiff  alleged  was  owing  to  him  for  medical  services 
rendered  to  decedent  and  her  husband  for  a  period  of  sixteen 
months.  A.  did  not  offer  to  testify  himself  as  to  these  services, 
but  sought  to  establish  his  claim  by  the  testimony  of  one  C, 
who  during  the  time  referred  to  attended  decedent  daily  as 
medical  adviser.  C,  although  a  licensed  physician,  had  never 
registered  pursuant  to  the  public  health  law  of  New  York,  and 
therefore  was  not  legally  qualified  to  practise  medicine.  This 
disqualification,  plaintiff  claimed,  took  C.  out  of  the  category 
of  physicians,  who  are  forbidden  to  reveal  professional  confi- 
dences, and  rendered  him  a  competent  witness  for  the  plaintiff. 
But  the  learned  trial  court  excluded  his  testimony  upon  these 
grounds,  stated  in  a  written  opinion  refusing  an  application 
for  a  new  trial.  The  relations  of  C.^  the  witness,  to  decedent 
were  professional  and  confidential.  The  questions  asked  of 
C,  under  objection,  "  called  for  a  statement  by  him  of  infor- 
mation obtained  in  his  professional  capacity,  either  directly 
from  the  patient  herself  or  by  observation,  and  were  clearly 
inadmissible."  The  fact  that  C.  had  not  complied  with  the 
registration  law  only  affected  him  personally,  rendering  him 
liable  to  punishment  for  violation  of  this  statute.  The  patient 
had  a  right  to  presume  that  her  physician  was  lawfully  prac- 
tising, and  the  privilege,  being  hers,  could  not  be  waived  or 
abrogated  by  the  fact  that  C.  was  practising  contrary  to  law. 
To  bring  a  witness  within  the  statute  it  is  sufficient  that  he 
has  attended  as  a  physician  upon  the  patient,  and  in  that  ca- 
pacity obtained,  as  necessary  to  treat  the  case,  the  information 
sought  to  be  elicited.  The  learned  court  thus  stated  the  pur- 
pose of  the  law :  "  The  statute  was  not  passed  for  the  pecuniary 
benefit  of  the  medical  fraternity,  but  to  silence  its  voice,  and 
in  this  manner  protect  those  seeking  medical  assistance,  by 
excluding  all  inquiries  which  may  offend  the  sensitiveness  of 
the  living  or  reflect  in  the  slightest  on  the  memory  of  the  dead. 
It  was  to  throw  the  mantle  of  charity  over  the  sick  and  unfor- 
tunate, and  at  the  same  time  elevate  the  medical  practitioner  to 
the  high  plane  with  the  clergy  and  Good  Samaritan,  leaving 
him  to  protect  his  fees  according  to  professional  ethics,  so  long 
as  he  does  not  infringe  the  humanitarian  sentiment  embraced 
in  the  statutory  prohibition." 

McGillicuddy  ?•.  Farmers'  Loan  &:  Trust  Co.,  N.   Y.  La70 
Jourfial,  Jan.  ii,  1899. 
4 


so  MEDICAL    ANNUAL. 

(Although  the  above  decision  was  rendered  at  trial  term  by 
a  single  judge,  McAdani,  J.,  the  reputation  of  its  author  for 
precision,  his  long  experience,  and  careful  review  of  cases, 
entitle  it  to  more  weight  than  is  sometimes  given  to  nisi prius 
opinions.  The  leading  cases  relied  upon  will  be  found  cited 
in  Hamilton.  It  would  appear  from  the  opinion  that  the 
witness  C.  was  allowed  to  testify  that  he  saw  plaintiff  in  dece- 
dent's house,  and  to  state  the  number  of  times  he  saw  him  there. 
What  he  was  not  permitted  to  recite  was  what  occurred  in  the 
privacy  of  the  sick  chamber;  and  the  rule  as  laid  down  in  this 
opinion  seems  to  be  that  in  such  a  case  a  physician  may  testify 
for  another  to  the  latter's  employment  by  the  patient,  the 
number  of  his  visits,  examinations,  prescriptions,  and  opera- 
tions; and,  if  objection  be  made  to  describing  the  operations, 
then  to  their  value.  But  he  may  not  testify  as  to  the  nature  of 
the  sickness,  or  to  anything  learned  by  him  in  his  confidential 
relations  and  necessary  to  proper  treatment  of  the  case.) 

Effect  of  Refusal  to  Reveal  Plaintiff's  Confidence  in 
AN  Action  by  the  Physician.— In  a  Scotch  case,  where  a 
physician  insured  against  blood-poisoning  under  an  accident 
policy  claimed  damages  on  the  ground  that  he  had  been  poi- 
soned by  the  virus  of  a  syphilitic  female  patient  whose  name 
he  refused  to  disclose,  it  was  held  that  this  refusal  justified  a 
non-suit.  This  case  is  noted  editorially  in  the  Albany  Law 
Journal,  June  9,  1897,  and  is  not  cited  from  the  reports. 

Waiver  of  Privilege  (Ham.,  p.  626).— A.  fell  on  the  broken 
stairway  of  a  club-house  and  brought  an  action  to  recover 
damages  for  resulting  injuries.  She  testified  to  the  hospital 
treatment  by  physicians,  and  on  cross-examination  to  the  phy- 
sician's name.  The  defence  then  called  the  physician  and 
asked  his  diagnosis;  plaintiff  s  counsel  objected,  and  the  court 
ruled  "that  her  conversation  with  the  doctor  being  brought  out 
on  cross-examination  of  the  defendant's  counsel,  and  being 
questioned  she  was  obliged  to  answer,  she  herself  had  no  privi- 
lege, does  not  open  the  door  to  waive  the  privilege  of  her  phy- 
sician to  refrain  from  disclosing  what  he  had  learned  by  pri- 
vate examination  of  his  patient."  [Here  the  learned  court 
apparently  fell  into  error,  for  the  privilege  is  not  the  physi- 
cian's, but  the  patient's.  Were  it  the  former's,  he  might  waive 
it  against  the  patient's  wish.]  Subsequently  the  court  said: 
"My  ruling  is  that  you  are  not  entitled  to  obtain  from  this 


NOTES   OF    LEGAL    DECISIONS.  5 1 

witness  a  disclosure  of  what  he  ascertained  by  an  examination 
of  this  woman  while  she  was  his  patient."  On  appeal  from  a 
judgment  of  $3,200 — 

Held,  that  as  A.  in  her  testimony  in  chief  went  very  fully 
into  her  treatment  at  the  hospital  and  the  various  operations 
performed  upon  her,  she  thereby  waived  her  privilege;  that 
such  waiver  must  be  determined,  as  a  question  of  fact,  from 
the  acts  of  the  plaintiff  during  the  trial;  that  one  of  two  prin- 
ciples must  be  adopted  in  this  class  of  cases — either  plaintiffs 
shall  be  allowed  to  testify  to  what  happened  w-hile  under 
treatment  and  no  testimony  allowed  to  contradict  them,  or  else 
their  testimony  must  be  considered  to  be  a  waiver  of  privilege. 
In  the  former  event  a  plaintiff  would  be  entirely  safe  in  testi- 
fying to  anything,  the  mouths  of  the  only  persons  able  to  con- 
tradict the  testimony  being  closed. 

Rauh  V.  Deutsche  Verein,  29  App.  Div.,  483 ;  N.  Y.  S., 

985- 

(The  above  important  case  was  decided  in  the  Appellate 
Division,  First  Department,  by  a  divided  court  of  three  to  two 
— two  of  the  majority  and  one  dissenting  judge  writing  opin- 
ions. The  result  arrived  at  does  not  seem  fairly  reconcilable 
with  Nelson  v.  Oneida  Village  {supra),  which  was  not  cited, 
or  in  accord  with  Western  decisions.  In  the  dissenting  opin- 
ion the  learned  judge  said:  "  Can  it  be  said,  while  the  statute 
above  referred  to"  (Code,  sec.  834)  "remains  in  force,  that  if 
a  person  sustains  an  injury  and  thereafter  brings  an  action  to 
recover  damages  therefor,  because  he  testifies  in  his  own  behalf 
to  the  injury  sustained,  and  that  he  was  treated  by  a  physician 
who  gave  him  medicine  and  who  performed  an  operation,  he 
thereby  waives  the  privilege  accorded  by  the  statute?  I  think 
not.  Such  a  conclusion  seems  to  me  absurd.  It  is  true  a 
waiver  may  be  inferred  from  circumstances,  but  there  must  be 
something  present  from  which  it  can  be  at  least  inferred  that 
the  party  waiving  does  so  willingly,  voluntarily,  purposely, 
and  intentionally."  The  learned  dissenting  judges  considered 
that  if  the  rule  worked  hardship,  the  remedy  was  with  the  leg- 
islature, and  not  with  the  courts.) 

Later  the  Second  Division  held  without  dissent,  in  an 
action  by  A.  to  recover  damages  for  a  libelous  publication  im- 
puting to  her  insanity,  that  by  calling  a  physician  to  prove 
that,  at  the  time  when  the  libel  alleged  her  to  be  in  Bellevue 


52  MEDICAL    ANNUAL. 

Hospital,  she  was,  in  fact,  in  St.  John's  Hospital,  suffering 
from  an  illness  the  nature  of  which  would  have  prevented  her 
from  leaving  the  latter  place,  the  plaintiff  waived  her  privilege, 
and  upon  cross-examination  defendant  was  entitled  to  ask  the 
physician  the  nature  of  her  malady. 

Lawson  v.  Morning  Journal  Ass'n.,  32  App.  l)iv.,  71; 
52  N.Y.S.,  484. 

But  in  Iowa  it  was  held  that  the  plaintiff  in  a  negligence 
case  did  not,  by  calling  her  physician  as  a  witness,  waive  her 
privilege  so  as  to  permit  other  physicians,  in  attendance  on  her 
and  called  by  defendant,  to  testify  as  to  her  condition. 
Baxter  v.  City  of  Cedar  Rapids  {supra). 

Under  the  California  code,  a  physician  cannot  be  examined 
in  a  civil  action  as  to  the  necessary  information  acquired  in 
treating  a  patient;  but  if  he  give  such  testimony  without  objec- 
tion by  the  patient,  it  cannot  be  stricken  out,  and  the  latter  will 
be  held  to  have  waived  his  objection ;  but  sembk  that,  although 
the  patient  has  testified  to  what  took  place  by  way  of  medical 
treatment,  he  can  still  by  timely  objection  close  the  physician's 
mouth. 

Lissak  v.  Crocker  Estate  Co.,  119  Cal.,  442  ;  51  P.,  688. 

Privilege  of  Patients  is  Not  That  of  a  Horse  or  His 
Owner. — A.,  an  attorney,  telegraphed  for  a  veterinary  to  come 
immediately  to  attend  his  sick  horse,  Bravo.  The  telegram 
was  delayed  five  hours,  and  Bravo  died  in  consequence,  as  was 
alleged,  of  this  delay.  A.  sued  the  telegraph  company,  which 
on  cross-examination  asked  the  veterinary  what  plaintiff  had 
said  as  to  the  reports  on  the  horse's  condition.  This  was 
objected  to,  amusingly  enough,  and,  amazing  to  say,  the  trial 
court  sustained  the  objection,  on  the  ground  that  the  matter 
was  privileged. 

Held,  on  appeal,  that  the  provisions  of  the  Iowa  code  as  to 
privileged  communication  to  physicians  do  not  apply  to  veteri- 
nary surgeons. 

Hendershott  v.  West.  Union  Tel.  Co.,  76  N.W.,  828. 

(When  it  is  considered  that  the  purpose  of  "privilege"  is  to 
permit  a  patient  to  reveal  to  the  medical  man  physical  condi- 
tions that,  except  for  this  privilege,  might  be  concealed  even 
at  the  risk  of  death  or  injury,  the  humor  of  extending  it  to  a 
horse  or  his  owner  is  obvious  and  delightful.) 

Dying  Declarations. — Dying  declarations  are  still  compe- 


NOTES   OF    LEGAL    DECISIONS.  S3 

tent  in  evidence  under  the  New  York  Criminal  Code.  But  it 
is  erroneous  to  charge  a  jury  that  "  it  is  the  experience  of  man- 
kind that  the  premonition  of  immediate  death,  from  which  there 
is  no  hope  of  recovery,  is  always  sufficient  to  influence  persons 
so  situated  to  tell  the  truth";  for  this  substantially  instructs 
jurors  that  if  the  statement  were  untrue  it  would  be  the  first  in- 
stance on  record  where  a  dying  declaration  had  been  false. 
People  z*  Corey,  157  N.  Y.,  332;  51  N.E.,  1,024. 
Under  the  Georgia  Penal  Code  a  v/riting  signed  by  deceased 
in  articido,  with  knowledge  of  his  condition,  is  admissible  as 
a  dying  declaration,  if  there  be  evidence  that  it  was  read  to 
him,  that  he  understood  its  contents,  and  intended  it  to  be  such 
declaration.  It  is  for  the  jury  to  say  what  weight  will  attach 
to  it  under  the  circumstances. 

Perry  v.  State,  30  S.E.,  903. 

Decedent,  having  said  she  was  going  to  die,  made  a  certain 
statement,  and,  a  few  minutes  after  it  was  made,  again  said  that 
she  was  going  to  die. 

Held,  that  this  statement  was  admissible  in  evidence  as  a 
dying  declaration. 

State  V.  Trusty,  40  Atl.,  766. 

Under  the  Pennsylvania  statute,  dying  declarations  of  a  wom- 
an on  whom  defendant  is  alleged  to  have  committed  abortion 
are  inadmissible  in  evidence,  unless  the  prosecution  has  by 
satisfactory  and  competent  evidence  proved  her  soundness  of 
mind  when  they  were  made. 

Held,  that  such  declarations  might  be  received  upon  the  tes- 
timony of  the  physician  in  charge  that  deceased,  when  roused 
from  a  state  of  coma  shortly  subsequent  to  such  declarations 
and  a  few  hours  before  death,  replied  to  questions  intelligently. 
Commonwealth  v.  Keene,  Weekly  Notes  of  Cases  (Pa.), 
vol.  xlii,  p.  567. 

To  render  dying  declarations  admissible,  decedent  must  have 

known  that  he  was  in  extretnis  and  have  given  up  all  hope  of 

life;   but  this  mental  attitude  may  be  shown  not  only  by  what 

he  said,  but  by  his  danger  and  the  surrounding  circumstances. 

Jones  7'.  Commonwealth,  46   S.VV.,   217;    20  Ky.  L.R., 

355.      {Cf.  In  re  Orpen,  86  Fed.  R.,  760.) 

Mental  Weakness — Incompetency. — Upon  a  petition  to 
have  a  person  declared  incompetent, a  physician  testified  thus: 
"  From  his  appearance,  and  questions  asked  and  answered  by 


54  MEDICAL    ANNUAL. 

Mr. ,  and  his  actions,  I  should  judge  he  would  be  a  man 

of  feeble  mind.     I  would  not  like  to  use  the  word '  unsound.' " 

Another  physician  testified  that  in  his  "judgment," was 

very  much  "  demented."  Upon  cross-examination  he  explained 
that  by  this  he  meant  to  say,  "his  mind  is  weakened";  and 
being  further  asked,  "Is  that  all  you  will  say — that  his  mind 
is  weakened?"  answered  "Yes."  The  court  held  that  proof 
of  mere  weakness  of  mind  not  amounting  to  imbecility  is  in- 
sufficient, and  that  it  was  erroneous  to  allow  the  question  to 
be  put  to  the  two  physicians,  whether  in  their  opinion  the 
alleged  incompetent  is  a  man  unable  to  take  care  of  himself 
and  his  affairs. 

In  re  Rush,  53  N.  Y.,  581. 
Extent  to  which  Non-Expert  Witness  may  Testify  to 
Mental  and  Bodily  Conditions  of  Others. — Lay  witnesses 
cannot  properly  give  an  opinion  as  to  the  mental  capacity  of 
A.,  if  that  be  an  issue;  but  they  may  state  the  impressions 
produced  upon  their  minds  by  acts  or  declarations  to  which 
they  have  testified,  and  say  whether  they  regarded  those  acts  as 
rational  or  not. 

Wyse  V.  Wyse,  155  N.  Y.,  367  ;  49  N.E.,  942. 
Where  previous  habit  of  study  is  essential  to  the  formation 
of  an  opinion,  only  persons  so  qualified  may  testify  to  such 
opinion.  But  when  the  subject-matter  to  which  testimony  re- 
lates cannot  be  reproduced  or  described  precisely  as  it  was, 
non-experts  may  give  opinion-evidence,  e.g.,  to  A.'s  state  of 
health;  hearing;  eyesight;  ability  to  walk,  work,  or  use  limbs 
naturally;  suffering;  consciousness;  intoxication;  excitement; 
possession  of  faculties. 

West  Chicago  St.  Ry  Co.  ?'.  Fishman,  169  111.,  196;  48 

N.E.,  447.     [Cf.  Re  McCabe,  40  A.,  52    (Vermont). 

Lamb   v.    Lippincott,   73    N.W.,    887    (Mich.).     Re 

Christiansen's  Estate,  53  Pac,   1,003   (Utah).     State 

V.  Beuerman,  53  Pac,  874  (Kansas). J 
Basis  of  Expert  Testimony.— A  plaintiff  was  seized  appar- 
ently with  an  hysterical  attack  in  court.  B,,  a  physician  pres- 
ent, testified  that  the  seizure  was  "  a  form  of  what  is  known  as 
hysteroepileptic  or  hysteromajor."  He  was  asked:  "Now, 
doctor,  from  your  experience  of  Mrs.  McGuire,  and  the  facts 
stated  and  testified  to  here,  what  do  you  say  was  the  cause  of 
that?" 


NOTES   OF    LEGAL    DECISIONS.  55 

Held,  error  to  have  allowed  witness  to  answer  this  question, 
as  being  too  vague.  Experts  must  be  examined  upon  hypo- 
thetical questions  containing  the  facts  assumed  to  have  been 
proven,  so  that  they  may  have  in  mind  a  definite  state  of  facts. 
It  will  not  do  to  refer  generally  to  testimony  that  has  been 
given. 

McGuire  v.  Brooklyn  Heights  R.R.  Co.,  30  App.  Div., 
227. 
Hypothetical  questions  must    contain  only  facts  admitted, 
established  by  evidence,  or  legitimately  inferrible  by  the  jury 
from  the  evidence. 

Preston  v.  Ocean  S.S.  Co.,  t,2>  -^PP-  Div.,  193  ;  53  N.Y.S., 
444. 
Speculative  Testimony. — In  an  action  to  recover  damages 
a  physician  was  asked:  "  Can  you  tell  us  with  reasonable  cer- 
tainty how  long  he  is  apt  to  have  those  pains?  "     And  under 
objection  answered:  "  He  may  have  them  during  his  lifetime." 
Held,  to  be  reversible  error;  that  if  the  question  had  been, 
How  long  will   he  have  those   pains? — and  the   answer  had 
been  the  same  as  given,  it  would  still   have  been  too  specu- 
lative ;  and,  as  it  was,  the  form  of  the  question  made  it  even 
more  so. 

Savage  v.  3d  Ave.  R.R.,  25  Misc.,  426  (New  York  City 

Court,  Gen.  Term). 

A  physician  may  not  testify  whether  decedent  was  struck  from 

behind  or  before,  unless  he  describe  the  wound  so  minutely 

that  the  jury  may  judge  for  themselves  of  the  accuracy  of  his 

conclusion. 

Parrott  v.  Commonwealth,  47  S.W.,  452  (Ky.). 
Nor  may  he  testify  whether  the  range  of  a  bullet-wound 
indicates  whether  the  person  firing  the  shot  stood  above  or 
below  decedent;  that  not  being  a  matter  for  expert  testimony. 
People  V.  Milner,  54  Pac,  833  (Cal.). 
The  opinions  of  experts  are  to  be  regarded  as  conclusive  by 
the  jury  only  when  the  evidence  and  facts  deducible  therefrom 
are  undisputed,  and  the  case  concerns  a  matter  of  science  or 
specialized  art  or  other  matter  of  which  a  layman  can  have  no 
knowledge. 

Moratsky  v.  Wirth,  76  N.W.,  1,032. 
This  is  the  stoutly  litigated  obstetrical  case  above  cited, 
^^nd  is  interesting  to  accoucheurs. 


56  MEDICAL    ANNUAL. 

Expert  Fees.  Compulsory  Testimony  (Ham.,  p.  614). — 
In  a  suit  for  damages  against  the  city  of  Springfield,  A.,  a 
physician,  subpcenaed  as  a  witness  by  the  city,  defendant,  was 
asked  a  hypothetical  question  which  he  refused  to  answer,  thus 
stating  his  reason:  "On  the  ground  that  an  expert  witness  is 
entitled  to  a  different  and  greater  compensation  than  an  ordi- 
nary witness  is  allowed,  and  that  an  expert  is  not  required  to 
give  expert  testimony  without  compensation  as  an  expert  unless 
a  reasonable  compensation  shall  have  been  paid  or  provided 
for.  My  reasonable  fee  for  an  expert  or  professional  opinion 
in  this  case  is  $10.  I  have  not  been  paid  nor  offered  anything 
for  compensation  for  my  expert  or  professional  opinion  in  the 
case,  nor  has  said  compensation  been  in  any  way  promised  to 
me  or  provided  for.  On  the  contrary,  it  has  been  expressly 
refused.  Therefore  I  decline  to  testify  until  such  fee  is  pro- 
vided for." 

Held,  that  A.  was  in  contempt  by  his  refusal,  and  properly 
punishable  therefor. 

Dixon  V.  The  People,  168  111.,  179;  48  N.E.,  108. 

(The  above  case  discusses  the  rule  very  fully,  and  is  of  im- 
portance to  expert  witnesses.  For  the  contrary  view,  see  cases 
cited  in  Hamilton;  and  for  other  discussion,  see  editorial  of 
New  York  Law  Journal,  Dec.  3,  1897.) 

X  Rays. — In  People  v.  Haynes,  a  case  of  murder  tried  Oct. 
21,  1897,  an  .r-ray  photograph  was  admitted  in  evidence  for  the 
first  time  in  New  York,  as  was  said  (see  Albany  Law  Journal, 
Oct.  30,  1897).  But  the  prese?it  editor  is  of  opinion  that  the 
x-i2iy  process  was  allowed  to  be  shown  in  court  previously  in 
a  negligence  case  tried  in  Kings  County. 

In  an  action  by  A.  to  recover  damages  for  personal  injury, 
where  a  surgeon  testified  that  he  was  familiar  with  the  .r-ray 
process  as  well  as  with  fractures,  that  by  aid  of  those  rays  he 
was  able  to  see  the  fracture  and  overlapping  bones  of  plaintiff's 
leg  as  plainly  as  if  they  were  uncovered,  and  that  he  had  taken 
a  photograph  offered  in  evidence,  and  that  it  was  a  fair  repre^ 
sentation  of  their  condition — 

Held,  proper  to  submit  the  photograph  to  the  jury. 
Bruce  v.  Beall,  41  S.W.,  445  (Tenn.,  1897). 


NOTES  OF   LEGAL   DECISIONS.  57 


V.  Excise  Laws  and  Sales  of  Intoxicating  Liquors  (Ham.,  p. 

638). 

Liability  of  Physician  for  Dispensing. — Under  the  Mis- 
souri statute  a  practising  physician,  being  a  registered  phar- 
macist and  owner  of    a  drug-store,   cannot   sell   intoxicating 
liquor  without  first  writing  a  prescription  therefor. 
State  V.  Bailey,  73  Mo.  App.,  576. 

But  where  a  physician,  also  a  registered  pharmacist,  was 
indicted  for  unlawfully  selling  liquor — 

Held,  that  his  own  prescription,  preserved  according  to  law, 
although  improperly  given  in  that  it  was  for  an   unnecessary 
remedy  and  was  a  false  pretence,  constituted  a  defence. 
State  V.  Pollard,  72  Mo,  App.,  230. 

Sales  by  Pharmacists  (Ham.,  p.  647). — Under  the  Colorado 
law  it  is  no  defence  in  an  action  for  selling  liquor  without  a 
license  that  the  liquor  was  sold  for  medicinal  purposes. 
Chipman  v.  People,  52  Pac,  677. 

Under  a  Colorado  ordinance  forbidding  unlicensed  liquor- 
selling,  but  in  terms  not  applicable  to  sales  by  a  druggist  upon 
prescriptions  of  reputable  physicians  and  for  medical  pur- 
poses— 

Held,  that  a  druggist  might  sell  liquor  for  medical  purposes 
without  a  prescription. 

Prowitt  V.  City  of  Denver,  52  Pac,  286. 

In  Georgia,  if  a  medical  preparation  contains  sufficient  alco- 
hol to  render  its  sale  without  license  unlawful,  the  fact  that  it 
is  sold  as  medicine  is  no  defence. 

Chapman  v.  State,  100  Ga.,  311. 

A  physician  accompanied  a  friend  into  a  drug-shop,  and,  the 
two  going  behind  the  counter,  the  physician,  in  the  druggist's 
presence,  poured  out  two  glasses  of  whiskey,  giving  one  to  his 
friend  and  drinking  the  other.  After  they  left  the  shop  the 
druggist,  finding  on  his  counter  a  prescription  by  the  physician 
for  whiskey,  filed  it  and  charged  the  writer.  It  was  addressed 
to  no  one,  and  in  quantity  called  for  "Q.  S." 

Held,  under  the  Indiana  statute,  forbidding  the  sale  or  gift 
in  drug-shops  of  whiskey  in  less  quantities  than  a  quart,  that 
the  evidence  warranted  a  finding  that  a  gift  had  been  made 
with  the  druggist's  consent  in  the  intent  to  evade  the  statute. 


58  MEDICAL    ANNUAL. 

Kyle  V.  State,  18  Ind.  App.,  136;  47  N.E.,  647. 
A  druggist,  licensed  to  sell  liquor  without  paying  the  tax  of 
^50  required  by  the   Kentucky  statute,  cannot  sell   liquor  un- 
mixed with   other   ingredients,  even  upon  a  physician's  pre- 
scription. 

Stormes  v.  Commonwealth,  47  S.W.,  262. 
In  Missouri,  pharmacists  are  not  amenable  to  the  dramshop 
law.     Their  sales  of  intoxicants  are  governed  by  the  law  regu- 
lating sales  of  intoxicating  liquors  by  druggists. 
State  V.  Geff,  70  Mo.  App.,  295. 
{Cf.  State  V.  Coday,  69  Mo,  App.,  70.     State  v.  Williams, 
69  Mo.  App.,  2S4.) 

A  physician's  prescription  cannot  render  legal  a  sale  made 
by  him  as  a  pharmacist  before  it  was  written. 
State  V.  Hale,  72  Mo.  App.,  78. 
Dentists. — Under  the  North  Carolina  statute  a  dentist  is 
not  authorized  as  a  doctor  to  prescribe  whiskey. 
I  State  V.  McMinn,  24  S.E.,  523  (1896). 

VI.  Public  Health. 

Food :  Power  of  Authorities  to  Restrain  its  Adultera- 
tion AND  Sale. 

Meat. — The  Arkansas  statute  authorizing  cities  to  prohibit 
business  dangerous  to  health  does  not  contemplate  as  a  valid 
exercise  of  such  authority  the  prohibition  of  the  sale  of  fresh 
pork  between  June  and  October, 

City  of  Helena  v.  Dwyer,  64  Ark.,  424;  42  S,W,,  1,071, 

The  Texas  statute  prohibiting  the  sale  of  food  known  to  be 
adulterated  in  any  way,  excepting  mixtures  of  ordinary  food 
which  are  not  injurious  to  health  labelled  as  mixtures,  is  in- 
valid because  of  its  vagueness.  The  particular  articles  pro- 
hibited or  required  to  be  labelled  should  have  been  enumerated. 
Dorsey  v.  State,  44  S.W,,  514, 

Vinegar At  common  law  a  person  has  the  right  to  sell  vin- 
egar of  any  standard  not  detrimental  to  health;  the  New  York 
Agricultural  Law,  being  in  derogation  of  this  right,  is  to  be 
strictly  construed. 

Held,  also,  that  merely  to  show  the  existence  of  less  than  two 
per  cent,  of  cider  vinegar  solids  in  a  sample  of  cider  vinegar, 


NOTES    OF    LEGAL    DECISIONS.  59 

without  evidence  of  full  evaporation  over  boiling  water  in  mak- 
ing the  test,  does  not  comply  with  the  statutory  requirements. 
People  V.  Braested,  30  App.  Div.,  401 ;  51  N.Y.S.,  824. 
Milk.— The  Rhode  Island  law,  forbidding  the  sale  of  adul- 
terated or  unwholesome  provisions  for  meat  or  drink,  does  not 
apply  to  the  sale  of  adulterated  milk. 
State  V.  Luther,  40  A.,  9. 
A.'s  driver  carried,  from  Jersey  City  to  his  employer,  adul- 
terated milk  received  in  that  place  from  the  shipper,  which  was 
subsequently  returned  to  the  latter. 

Held,  in  the  absence  of  any  proof  of  sale,  that  the  evidence 
would  not  sustain  an  action  for  the  recovery  of  a  penalty  under 
the  Agricultural  Law  of  New  York,  it  being  improper  to  pre- 
sume that  the  defendant  was  engaged  in  an  unlawful  act. 
People  V.  Kellina,  50  N.Y.S.,  653. 
The  Pennsylvania  statute,  providing  that  any  food  shall  be 
deemed  adulterated  from  which  any  valuable  or  necessary  con- 
stituent or  ingredient  has  been  wholly  or  in  part  extracted — 

Held,  not  to  apply  to  one  who  sells,  as  skimmed  milk,  milk 
from  which  cream  has  been  taken  by  the  "  centrifugal  method," 
which  extracts  more  cream  than  ordinary  skimming. 
Commonwealth  v.  Hufna,  39  Atl.,  1,052. 
Sale  of  Milk  from  Infected  Tenements. — A.  had  a  milk- 
shop  on  the  ground  floor  of  a  three-story  building  block  of 
tenements  or  flats,  adapted  for  separate  occupancy  and  con- 
nected by  a  central  stair.  He  resided  on  the  second  floor. 
The  first  floor  intervening  was  let  separately. 

Held,  that  the  place  was  a  building  within  the  Dairies', 
Cowsheds',  and  Milkshops' Order  of  1885,  and  that  upon  the  out- 
break of  an  infectious  or  contagious  disease  in  a  family  on  the 
second  floor,  A.  should  have  ceased  to  sell  milk  from  his  shop. 
London  Co.  Council  v.  Edwards  (1898),  L.R.  two  Q.B., 
75- 

Food    Adulteration  —  Cases    Relating  to   Pleading    and 
Procedure. 

State  V.  Luther,  40  Atl.,  9  (R.  L).      Dorsey  v.  State,  44 
S.W.,  514  (Texas). 
Powers   of   Municipalities,  Health  Boards,    etc.     Con- 
tracts.— Under  the  Lidiana  statute  it  is  the  duty  of  the  county 


6o 


MEDICAL    ANNUAL. 


commissioner,  acting  as  a  board  of  health,  promptly  to  act  in 
arresting  the  spread  of  contagious  diseases.  During  a  small- 
pox quarantine  a  township  trustee  employed  A.,  a  watchman, 
and  certified  that  the  amount  of  his  claim  for  services  in  that 
capacity  was  due. 

Held,  in  a  suit  by  an  assignee  of  said  claim,  that  the  county 
was  not  liable. 

Comm'rs.  of  Perry  Co.  v.  Bader,  50  N.E.,  776. 

A  city's  health  board  may  bind  the  city  by  its  contract  to 
hire  premises  for  hospital  uses  and  for  the  nursing  of  the  sick. 
Turner  v.  City  of  Toledo,  15  Ohio  Cir.  Ct.  R.,  627. 

Right  of  Owners  to  Notice  Where  Tenements  are 
Condemned  or  Nuisances  Abated.  Decisions  of  Board 
Not  Judicial.  Owners'  Remedies. — The  health  board  of  New 
York  city  declared  a  certain  tenement  to  be  unfit  for  habita- 
tion and  a  nuisance,  and  required  the  owner  to  destroy  it. 
The  owners  sued  in  equity  for  the  vacation  and  cancellation  of 
the  board's  orders  and  resolution,  and  that  it  be  enjoined  from 
destroying  the  premises,  alleging  that  the  tenement  was  not  a 
nuisance  or  unfit  for  habitation.  Defendants  answered  that 
plaintiff  had  a  remedy  in  the  law,  that  there  was  no  jurisdic- 
tion in  equity,  and  that  the  action  of  said  board  was  taken 
bond  fide  in  discharging  its  duty  to  preserve  the  public  health. 
Upon  plaintifif's  demurrer  to  the  answer — 

Held,  that  there  was  equitable  jurisdiction ;  that  the  orders 
of  the  board  in  such  cases  are  not  conclusive;  that  the  statutory 
provision  that  the  action,  proceedings,  and  orders  of  said  board 
shall  be  regarded  as  judicial  in  nature,  does  not  make  the 
board  a  court  whose  orders  are  final;  that  the  exemption  of 
members  of  the  board  from  suit  or  liability  for  acts  done  by 
them  in  good  faith  and  with  ordinary  discretion  pursuant  to 
its  regulations,  does  not  afford  a  complete  defence  in  such  an 
action,  and  is  demurrable  if  so  pleaded. 

Golden  v.  Health  Dept.,  21  App.  Div.,  420;  47  N.Y.S., 
623. 

As  the  New  York  statute  makes  no  provision  for  notice  or 
hearing  by  the  board  of  health  before  condemning  a  tenement 
as  a  nuisance,  an  owner  may  come  into  a  court  of  equity  to 
prevent  enforcement  of  the  order. 

Golden  v.  Health  Dept.  {supra). 

A  municipal  health  board  need  not  notify  an  interested 


NOTES   OF    LEGAL    DECISIONS.  6 1 

party  of  its  proceedings  to  determine  a  nuisance  and  order  its 
abatement,  since  he  has  a  remedy  by  injunction  or  against  the 
members  of  the  board  personally. 

Hartman  v.  City  of  Wilmington,  41  Atl.,  74. 

Under  the  Arkansas  statute,  empowering  city  councils  to 
establish  health  boards  with  the  duty  to  secure  cities  from 
contagious,  malignant,  or  infectious  diseases,  such  councils 
have  power  to  authorize  such  boards  to  abate  nuisances  danger- 
ous to  health.  The  statute  is  valid,  and  under  it  the  resolution 
of  a  health  board  is  not  a  judicial  determination  that  the  prop- 
erty covered  by  it  is  a  nuisance,  nor  can  such  resolution  make 
the  property  a  nuisance. 

Gaines  v.  Waters,  64  Ark.,  609 ;  44  S.W.,  353. 

Under  the  Rhode  Island  law  a  nuisance  caused  by  a  privy 
vault  may  be  summarily  abated;  and,  therefore,  the  owner  does 
not  have  a  constitutional  right  to  notice  prior  to  the  passage 
of  an  order  by  the  aldermen  directing  him  to  destroy  it. 

A  statute  providing  for  the  destruction  of  such  a  vault,  pend- 
ing its  owner's  appeal  from  such  an  order,  is  constitutional. 

So  is  the  provision  that  failure  to  comply  with  such  an  order 
within  ten  days  shall  subject  the  owner  to  a  fine  of  from  $5  to 
$20  a  day,  and  empower  the  aldermen  after  sixty  days  to  de- 
stroy the  vaults. 

Harrington  v.   Board  of  Aldermen  of  Providence,  38 
Atl ,  I. 

Unsanitary  Tenements.  —  In  New  York  city  a  five-story 
tenement,  being  91  feet  long  and  20  feet  wide,  with  a  court 
from  five  to  seven  feet  wide,  having  rear  walls  eight  inches 
from  a  dead  wall,  apartments  of  three  rooms  with  a  single  win- 
dow opening  upon  an  eight-inch  court,  cellars  occupied  by 
sinks,  a  death-rate  abnormally  high  from  unsanitary  conditions, 
and  a  court  entirely  surrounded  by  buildings  not  less  than 
three  stories  high — 

Held,  to  be  unfit  for  human  habitation. 

Held,  also,  that  because  such  tenement  w^as  unfit  for  habita- 
tion, it  did  not  follow  necessarily  that  it  should  be  destroyed, 
in  the  absence  of  proof  that  it  could  not  be  made  fit. 

Held,  also,  that  the  mere  fact  that  the  existence  of  such  a  tene- 
ment, even  though  uninhabited,  renders  adjacent  buildings  unfit 
for  habitation,  is  not  ground  for  its  destruction  under  the  statute. 

Held,  also,  that  the  fact  that  such  tenement  was  a  nuisance 


62  MEDICAL    ANNUAL. 

as  a  habitation  was  not  sufficient  ground  for  its  destruction,  in 
the  absence  of  proof  that  a  change  of  its  use  would  abate  the 
nuisance. 

Health  Dept.  v.  Dassori,  21  App.  Div.,  348. 
As  to  procedure  under  the  New  York  statute  for  the  destruc- 
tion of  tenements — 

Health  Dept.  v.  Henry  De  Forest  Weeks,  N.Y.L.J., 
Nov.  26,  1897. 
Nuisance  of  Drains.  —  Under  the  Public  Health  Act, 
Amendments  Act,  1890,  a  drain  on  private  grounds,  inaccessi- 
ble to  the  public,  is  a  private  drain;  and  if  it  become  a  nui- 
sance, local  authorities  may  for  its  abatement  proceed  against 
any  owner  or  premises  connected  with  it  by  a  branch. 

Seal  V.  Methyr  Tydfil   Urban  Council,  67  L.J.R.,  Q.B. 

Div.,  37. 

Where  a  private  drain  tapping  several  houses  becomes  a 

nuisance,  the  authorities  may  serve  each  owner  with  a  notice 

addressed  to  all  jointly;  and  if  it  is  not  obeyed,  may.enter  and 

abate  the  nuisance  at  their  cost. 

Lancaster  v.  Barnes   Urban  Council,  67   L.J.R.,  Q.B., 

744- 
For  the  rule  in  the  metropolis,  see: 

Green  v.  Newington  vestry  (1898),  L.R.  two  Q.B.,  i. 
The  sanitary  authorities  directed  A.  and  B.  to  remedy  de- 
fects of  drainage,  which  it  was  the  duty  of  said  authorities  to 
remedy.  A.  and  B.  obeyed.  The  authorities  opposed  the 
recovery  of  the  cost  of  this  work,  upon  the  ground  that  the 
notice  not  being  in  statutory  form,  A.  and  B.  were  not  under 
legal  compulsion  to  obey  it,  i.e.,  were  volunteers. 

Held,  that  prompt  action  being  necessary  in  such  cases,  and 
there  being  little  time  to  consider  one's  rights,  persons  doing 
work  under  what  amounts  to  compulsion  by  authorities  may 
recover  its  cost. 

North  et  al.  v.  Walthamstow  Urban  Council,  67  L.J., 

Q.B.  Div.,  972. 

Owners   Entitled  to  Choice   of    Sanitary  Appliances. — A 

board  of  health  cannot  restrict  the  method  of  laying  a  stable 

floor  according  to  a   special   plan.     Owners  have  the  right  to 

adopt  any  method  that  will  secure  requisite  sanitary  conditions. 

Moreford  v.  Board  of  Health  of  Asbury  Park,  39  Atl., 

706  (N.  J.). 


NOTES   OF    LEGAL   DECISIONS.  63 

A  notice  by  the  authorities  that  a  specified  kind  of  water- 
closet  must  be  substituted  for  a  privy  was  held  invalid,  as 
leaving  the  owner  no  choice  of  equally  good  closets. 

Wood  V.   Widness    Corporation,  Law    Times,   Feb.   5, 
1898,  vol.  civ.,  p.  315. 

Nuisance  of  Pest-House — Abandonment  of  Quarantine 
Site  (Ham.,  p.  67,2,). — The  city  of  Baltimore  in  1883  destroyed 
pest-houses  theretofore  maintained  by  it  outside  the  city  limits, 
and  directed  a  sale  of  the  land,  which  remained  unused  until 
1897,  when  the  city  put  a  leper  upon  the  premises. 

Held,  that  the  land  had  been  abandoned  for  quarantine  pur- 
poses, and  could  not  be  used  for  the  detention  of  the  leper  to 
the  injury  of  the  adjoining  owners,  who  had  improved  their 
land  in  the  belief  that  the  city  had  abandoned  the  site  for 
said  purposes. 

Held,  also,  that  the  fact  that  the  pest-house  was  not  origi- 
nally a  nuisance,  owing  to  its  remoteness  from  the  city,  did 
not,  in  the  absence  of  prescriptive  right  to  maintain  the  estab- 
lishment, deprive  adjacent  owners  of  redress  upon  the  theory 
that  they  have  come  to  the  nuisance. 

Held,  also,  under  the  Maryland  statute,  permitting  the 
establishment  of  hospitals  for  the  isolation  and  treatment  of 
contagious  diseases,  that  placing  a  leper  in  the  home  of  a  pri- 
vate person  not  a  municipal  officer  is  not  the  establishment  of 
a  hospital  within  the  act,  and  is  not  justifiable  if  the  caretaker 
dwells  in  a  settled  district;  such  action  on  the  part  of  the  mu- 
nicipality tending  to  spread  the  disease. 

City  of  Baltimore  ?'.  Fairfield  Imp.  Co.,  39  Atl.,  1,081  ; 
40  L.R.A.,  494. 

Liability  of  Authorities  for  Damages  Due  to  Establish- 
ment OF  Pest-House. — The  Kentucky  statute,  which  forbids 
that  a  pest-house  be  located  near  a  city  or  town,  and  imposes 
liabilities  therefor  upon  any  officer  of  such  city  or  town,  only 
applies  to  the  executive  or  ministerial  officers  who  establish 
the  pest-house,  but  not  to  legislative  officers. 

Such  an  establishment  is  within  the  powers  of  the  municipal- 
ity, which  becomes  liable  in  compensatory  damages  therefor  to 
one  injured  thereby. 

Where  the  facts  stated  in  a  pleading  show  the  existence  of  a 
nuisance  and  damage  resulting  therefrom  to  a  private  person, 
there   is  a  common-law  liability   of  the  municipality  to  the 


64  MEDICAL    ANNUAL. 

individual,  although  there  may  be  no  liability  under  the  stat- 
ute, and  the  use  of  the  word  nuisance  is  not  necessary  if  the 
facts  alleged  show  its  existence. 

Clayton  v.  City  of  Henderson,  44  S.W.,  667. 

A.  brought  an  action  against  the  city  of  Detroit,  to  recover 
damages  growing  out  of  the  negligence  of  the  city  board  of 
health,  in  permitting  to  be  at  large  one  who  had  been  exposed 
to  small-pox  and  who  came  as  a  guest  to  A.'s  boarding- 
house. 

Held,  that  the  board  represented  the  State,  and  that  the  city 
was  not  liable. 

Gilboy  V.  City  of  Detroit,  73  N.W.,  128. 

Where  small-pox  broke  out  upon  the  premises  in  the  city  of 
Detroit  without  fault  on  the  part  of  the  board  of  health,  which 
disinfected  and  quarantined  the  house — 

Held,  that  the  city  was  not  liable  in  damages  for  loss  result- 
ing from  the  infection,  and  if  through  negligence  of  the  health 
officers  in  performing  their  work  unnecessary  damage  resulted, 
any  liability  therefor  devolved  upon  such  officers  alone  and  not 
upon  the  city. 

Webb  V.  Board  of  Health  of  Detroit,  74  N.W.,  734. 

Vaccination. — New  Vaccination  Act  of  1898  takes  effect 
Jan.  I,  1899. 

Za7a  Times,  Aug.  27,  1898,  p.  381,     La7v   Times,  Oct. 
8,  1898,  p.  484. 

Compensation  of  Health  Officers  (Ham.,  p.  613). — Under 
the  Kentucky  statute,  local  health  boards  are  entitled  to  so 
much  compensation  for  services  as  the  county  courts  shall  in 
their  discretion  determine. 

Held,  that  such  discretion  was  judicial,  and  could  not  be 
controlled. 

Stephens  v.  Allard,  44  S.W  ,  386. 

Under  the  New  York  statute,  authorizing  village  trustees  to 
make  annual  appropriations  for  paying  members  of  health 
boards  fair  and  just  compensation  for  services — 

Held,  that  in  fixing  salaries  of  such  members  the  trustees 
acted  in  an  administrative  or  legislative  capacity,  not  judi- 
cially, and  that  their  action  could  not  be  reviewed  by  cer- 
tiorari. 

People  V.  Trustees  of  Haverstraw,  23  App.  Div.,  231; 
48  N.Y.S.,  740. 


NOTES   OF    LEGAL    DECISIONS.  65 

A  local  health  board  contracted  with  A.  during  an  epidemic 
for  medical  services,  and  audited  his  bill. 

Held,  that  the  board  of  supervisors  could  not  refuse  payment 
because  some  of  the  persons  treated  by  A.  were  able  to  pay. 

McKillop  V.  Supervisors  of  Cheboygan,  74  N.W.,  1,050 
(Mich.). 

A.,  municipal  health  officer  at  a  monthly  salary,  claimed  to 
recover  as  well  the  value  of  visits  made  by  him  to  a  small-pox 
patient.  His  evidence  showed  that  in  one  instance  he  had 
been  authorized  by  the  board  of  health  to  employ  a  physician 
to  make  such  a  visit,  but  had  made  it  himself.  In  the  other 
instance  the  board  had  directed  him  to  make  the  visit  person- 
ally, upon  his  statement  that  he  would  like  to  make  what 
money  there  was  in  it. 

Held,  that  he  could  not  claim  extra  compensation  for  these 
services,  since  they  were  embraced  within  the  duties  of  his 
office. 

Reynolds  z/.  City  of  Mt.  Vernon,  26  App.  Div.,  581; 
50  N.Y.S.,  473. 

Under  the  Iowa  statute  a  health  officer  assists  in  adminis- 
tering the  law,  but  is  not  required  to  treat  the  sick;  where, 
therefore,  a  health  board  employed  another  physician,  A.,  to 
treat  B.,  affected  with  a  contagious  disease,  A.  is  entitled  to 
compensation,  even  though  B.  is  a  pauper  and  the  county  has 
a  contract  with  still  another  physician  to  treat  its  poor. 
Lacy  V.  Kossuth  County,  75  N.W.,  689. 

VII.  Miscellaneous. 

College — Hospitals.  Professor's  Tenure  of  Office. — A 
professor  can  be  removed  from  the  N.  Y.  P.  G.  School  and 
Hospital  at  pleasure  by  a  majority  of  directors,  but  upon 
charges  only  by  a  two-thirds  vote. 

Mandamus  is  not  the  remedy  for  one  so  removed  from  the 
employ  of  a  private  corporation. 

People  ex  rel.  Kelsey  v.  N.Y.P.G.   Med.   School  and 
Ilospital,  29  App.  Div.,  244;  51  N.Y.S.,  420. 
Libel.     Right  of  Privacy— Unauthorized  Use  of  Physi- 
cian's Name  in  Advertising  Proprietary  Articles  (Ham., 
p.  640). — A.,  manufacturer  of   a    nostrum,  "  Sallyco,"   in   an 

advertisement,   said:    "Dr.   B.,   physician  to Hospital, 

5 


66  MEDICAL    ANNUAL. 

London,  and  many  of  the  leading  physicians,  are  prescribing 
Sallyco  as  an  habitual  drink.  Dr,  B,  says :  '  Nothing  has  done 
his  gout  so  much  good.' "  B.  sued  A.,  on  the  grounds  that  the 
words  libelled  him  in  his  profession;  that  they  were  untrue, 
published  without  his  authority  or  consent,  and  by  their  puffing 
nature  tended  to  bring  him  into  contempt  among  medical  men 
and  the  laity  as  guilty  of  advertising  himself,  contrary  to  the 
ethical  rules  of  his  profession,  and  thereby  to  cause  him  loss 
of  income.  A.  admitted  the  publication  was  unauthorized,  but 
denied  that  its  statements  were  malicious,  untrue,  or  libelous. 
On  trial  it  appeared  that  B.  had,  in  fact,  prescribed  Sallyco 
for  patients,  to  be  taken  twice  daily  for  a  fortnight,  and  that  he 
had  told  A.  that  he  had  himself  taken  it  for  gout  and  been 
benefited  by  it.  There  was  no  proof  of  pecuniary  damage. 
Two  questions  were  left  to  the  jury:  (i)  Was  the  matter  com- 
plained of  libelous?  (2)  If  libelous,  was  it  true?  The  jury, 
having  found  that  the  matter  was  not  libelous,  did  not  answer 
the  second  question;  and  the  court  having  reserved  the  ques- 
tion whether  plaintiff  upon  their  finding  was  entitled  to  relief, 
judgment  was  given  for  defendant,  the  court  saying:  ''The 
whole  question  turns  on  the  meaning  of  the  word  '  habitual '  ; 
and,  I  think,  when  a  physician  prescribes  the  daily  use  of  any- 
thing for  a  fortnight  at  a  time,  it  can  hardly  be  incorrect  to  say 
that  he  prescribes  its  habitual  use.  Assuming  that  the  pub- 
lished matter  is  true,  in  fact,  the  plaintiff  is  driven  to  rely  on 
the  admitted  fact  that  the  use  of  his  name  by  the  defendant 
was  unauthorized.  He  says  that  he  is  entitled  to  an  injunc- 
tion upon  it  to  restrain  the  defendant  from  using  the  plaintiff's 
name  in  the  advertisements,  on  the  ground  that  an  injunction 
should  be  granted  in  every  such  case  where  it  can  be  shown 
that  the  use  of  the  plaintiff's  name  is  unauthorized  by  the 
plaintiff,  and  is  calculated  to  injure  him  in  his  profession.  I 
do  not  think  this  is  right.  It  seems  to  me  to  be  a  broader  rule 
than  any  which  can  be  extracted  from  the  authorities.  I  have 
been  seeking  for  one  more  precise  and  accurate,  and  I  have 
come  to  the  conclusion  that  the  proper  rule  is  that  stated  by 
Mr.  Witt.  In  order  that  an  injunction  may  issue  to  restrain  a 
defendant  from  using  a  plaintiff's  name,  the  use  of  it  must  be 
such  as  to  injure  the  plaintiff's  reputation  or  property.  The 
jury  have  found  here  that  its  use  constitutes  no  injury  to  the 
plaintiff's  reputation.     Does  it  inflict  any  injury  to  his  prop- 


NOTES   OF    LEGAL    DECISIONS.  67 

erty?     It  does  not.     If  the  plaintiff  was  himself  the  vendor  of 
a  rival  medicine,  it  might  be  different." 

Dockrell  v.  Dougall   (Ixxviii.,  Law  Times,   Rep.,  840, 

Q.B.D.;  Albany  L.J.,  Sept.  24,  1898;  N.Y.L.J.,  Sept. 

29,  1898). 
(In  New  York,  Drs.  Lewis  A.  Sayre,  J.  D.  Bryant,  Alfred 
L.  Loomis,  and  F.  R.  S.  Drake,  all  successfully  instituted 
legal  proceedings  to  stop  the  unauthorized  use  of  their  names 
by  vendors  of  proprietary  remedies  in  recent  times.  In  each 
instance,  however,  the  offending  parties  discontinued  the 
objectionable  advertising  and  settled  the  cases  before  trial; 
none  of  them  are  therefore  reported.  But  in  the  case  of  the 
late  Sir  Morell  McKenzie,  the  Supreme  Court  of  New  York 
did  enjoin  the  unauthorized  use  of  his  name  to  advertise  Carls- 
bad salts  (see  Ham.,  p.  643).  In  view  of  the  fact  that  mem- 
bers of  some  medical  societies  do  indorse  such  remedies  with- 
out incurring  discipline,  the  weight  that  a  jury  would  give  to 
the  rules  of  such  a  society,  or  their  estimate  of  the  damage 
resulting  to  one  of  its  members,  qua  member,  from  such  mis- 
use of  his  name,  is  at  least  questionable.) 

A.  charged  that  his  daughter's  sight  had  been  destroyed  by 
B.,  a  physician,  through  the  use  of  belladonna.  B.  brought  an 
action  to  recover  for  his  medical  services.  A.  defended  on 
the  ground  that  B.'s  malpractice  had  caused  his  daughter's 
blindness.  The  jury  disagreed.  Subsequently  A.  settled  the 
case,  but  later  published  in  the  newspapers  a  signed  statement, 
to  the  effect  that  the  settlement  was  not  a  retraction  of  the 
charge,  which  he  reiterated,  but  was  made  because  his  pocket- 
book  would  not  allow  him  to  fight  the  combination  that  the 
doctor  had  back  of  him, 

B.  brought  an  action  in  slander  and  libel,  and  A.  justified, 
/.<?.,  alleged  the  truth  of  his  statement.  The  testimony  of  all 
the  expert  physicians  was  to  the  effect  that  belladonna  could 
not  cause  blindness;  although  it  appeared  that  when  the  loss 
of  vision  was  first  discovered,  another  physician  who  was  called 
in  expressed  an  opinion  that  it  was  due  to  the  use  of  that  drug, 
in  which  opinion  B.  himself  concurred  at  the  time,  the  loss  of 
vision  being  then  supposed  to  be  temporary.  It  further  ap- 
peared that  defendant  A.  had  been  assured  by  oculists  before 
suit  that  it  was  not  possible  that  his  daughter's  blindness  was 
due  to  belladonna. 


68  MEDICAL    ANNUAL. 

Held,  reversing  judgment  for  defendant,  that  the  justifica- 
tion had  failed. 

demons  v.  Mellon,  27  App.  Div.,  349. 

Literary  Property — Reports  to  Professional  Bodies. — 
A  committee  of  the  New  Jersey  Dental  Society,  a  corporation, 
made  a  report  on  the  care  and  treatment  of  the  teeth,  which 
was  read  at  an  annual  meeting,  accepted,  and  filed  for  future 
discussion;  a  copy  of  it  was  also  given  to  a  professional  jour- 
nal, but  was  not  in  fact  published.  A  representative  of  a 
manufacturing  company  procured  a  copy  from  some  one  con- 
nected with  the  journal,  but  without  said  society's  authority, 
and  used  excerpts  for  advertising  purposes. 

Held,  that  the  mere  fact  of  its  reading  did  not  amount  to  such 
dedication  to  the  public  as  would  permit  an  exhibitor  to  pub- 
lish it,  there  being  no  proof  of  a  general  invitation  to  the  pub- 
lic to  attend  the  meeting,  or  that  the  auditors  did  not  pay 
admission. 

Dental   Society  v.   Denticura    Co.,   41    Atl.,   672    (see 
N.Y.L.J.,  Editorial,  Dec.  19,  1898). 

Manslaughter  Resulting  from  Neglect  to  Afford  Med- 
ical Aid.  Christian  Science — Peculiar  People. — One  of 
the  *'  Peculiar  People"  was  indicted  for  manslaughter,  in  that 
he  caused  his  child's  death  by  withholding  medical  aid  when 
the  infant  was  ill  of  bronchitis  and  pneumonia.  The  case 
was  tried  before  Darling,  J.,  and  a  jury  at  London  Sessions, 
Sept.  16,  1898.  In  summing  up  to  the  jury,  Mr.  Justice  Dar- 
ling said:  "Not  only  would  he  (the  prisoner)  not  call  in 
a  doctor,  but  he  left  his  case  to-day  absolutely  in  the  hands 
of  the  Lord.  He  did  not  want  any  counsel,  but  said  the 
Lord  Jehovah  would  give  a  proper  verdict;  at  least,  so  I 
understood  it.  Although  the  conclave  of  the  Peculiar  Peo- 
ple has  decided  that  a  physician  was  not  to  be  called  in  in 
case  of  sickness,  it  had  not  yet  considered  the  case  of  a  sur- 
geon. The  evidence  was  that  none  of  the  Peculiar  People 
had  yet  had  broken  bones;  but  when  a  case  of  that  kind  hap- 
pened they  would  have  a  conclave  which  would  determine 
whether  the  Lord  could  set  bones  or  whether  He  could  not. 
//  is  the  duty  of  parctits  to  provide  medical  aid  for  their  chil- 
dren. A  child  did  not  know  anything  about  the  tenets  of  the 
Peculiar  People.  While  a  child  is  of  tender  years  and  could 
not  choose  for  itself,  the  law  protects  it.     If  the  defendants 


NOTES   OF    LEGAL    DECISIONS,  6g 

neglected  the  duty  which  the  law  imposed  upon  them — the  duty 
of  calling  in  medical  aid  for  the  child — and  death  is  thereby 
caused  or  accelerated,  they  are  guilty  of  the  charge  made 
against  them."  The  jury  agreed  that  there  was  gross  negli- 
gence, but  could  not  agree  that  it  accelerated  death. 
Regina  v.  Cook,  Alb.  L.J.,  vol.  Iviii,  p.  232. 

In  another  case,  upon  similar  facts,  the  jury  convicted,  and 
the  Court  of  Crown  Cases  Reserved  affirmed  the  conviction; 
apparently,  however,  basing  the  affirmance  upon  the  Prevention 
of  Cruelty  to  Children  Act  (1894),  57  and  58  Vict.  Ch.,  41. 
The  memorandum  of  decision  is  as  follows:  "A  parent  is 
guilty  of  manslaughter  if,  in  consequence  of  his  wilful  refusal 
to  provide  medical  aid  for  his  child,  the  child  dies,  whatever 
may  be  the  parent's  motive.  It  is  a  doctrine  of  a  religious 
sect,  calling  themselves  '  The  Peculiar  People,'  that  it  is  sin- 
ful to  administer  drugs  to  the  sick  or  to  employ  a  physician. 
A  member  of  the  sect  refused  to  supply  medicine  to  his  sick 
child,  or  to  allow  it  to  be  attended  by  a  medical  man,  and  in 
consequence  of  the  want  of  medical  aid  the  child  died. 

"  Held,  that  the  parent  was  rightly  convicted  of  manslaugh- 
ter." 

Regina  v.  Senior  (decided  Dec.  loth),  Law  Times,  T>e^c. 
17,  1898. 

(Although  this  last  case  seems  to  be  decided  under  the  Pre- 
vention of  Cruelty  to  Children  Act,  that  statute  does  not 
expressly  require  that  medical  aid  shall  be  furnished  to  children. 
See  Medical  Record,  Jan.  21,  1899,  p.  no.  As  bearing  upon 
the  excusability  of  parents  who  neglect  ordinary  medical  safe- 
guards for  their  children  on  account  of  conscientious  motives, 
it  may  be  noticed  that  the  new  English  Vaccination  Act  relieves 
from  penalties  imposed  for  not  vaccinating  children,  parents 
who  satisfactorily  prove  to  a  magistrate  or  two  justices  their 
conscientious  belief  that  vaccination  is  prejudicial  to  a  child's 
health.     See  Law  JourTial,  Oct.  i,  1898.) 

Taxation — Medical  Society  Not  Exempt  as  Being  a 
Charitable  or  Educational  Body.  —  A  medical  society, 
organized  under  the  New  York  statutes,  Ch.  94,  LI.  18 13, 
which  maintains  a  medical  library  open  to  the  public,  furnishes 
rooms  for  the  meeting  of  medical  and  charitable  societies,  and 
has  established  an  organization  for  mental  improvement  and 
for  certain  educational  and  charitable  purposes,  but  does  not 


70  MEDICAL    ANNUAL. 

allege  organization  exclusively  to  carry  out  those  purposes,  or 
claim  that  its  purpose  is  to  improve  morals,  or  of  a  religious, 
missionary,  hospital,  patriotic,  historical,  or  cemetery  nature, 
is  not  exempt  from  payment  of  taxes  under  Ch.  498,  LI.  1893. 
People  ex  rel.  Med.   Soc.  Kings  Co.  v.  NefT,  et  al.,  34 
App.  Div.,  83. 
Sanctity  of  the  Person — Autopsy  (Ham.,  p.  632). — An  ac- 
tion lies  by  a  father  to  recover  damages  for  an  unauthorized 
autopsy  upon  his  child. 

Burney  v.  Children's  Hospital,  47   N.E.,  401    (Mass., 
June,  1897).     Cf.  Larson  v.  Chase,  47  Minn.,  307. 
A  wife  has  a  similar  action  for  unauthorized  dissection  of 
husband. 

Foley  7'.  Phelps,   i    App.   Div.,  551.     New  York  L.J., 
July  21,  1897,  editorial. 
And  an  insurance  company  cannot  as  matter  of  right  hold 
an  autopsy  on  the  body  of  the  insured. 

Wehle  V.  U.  S.  Mut.  Accident  Ass'n.,  11  Misc.,  36;  153 
N.Y.,  116. 
Pharmacy  —  Unlawful  Sale  by  Employee — What  are 
Rural  Districts  in  the  Meaning  of  the  Law. — Under  the 
New  York  statute,  where  it  appears  that  the  sale  of  medicine  in 
the  shop  of  a  person  not  a  licensed  pharmacist  was  made  not 
by  defendant  personally,  but  by  his  servant  and  against  the 
express  orders  of  defendant,  given  in  good  faith  and  expecta- 
tion that  they  would  be  obeyed — 

Held,  that  an  action  for  penalty  would  not  lie  against  the 
employer,  proof  of  such  disobedience  by  a  servant  being  a 
defence  thereto. 

Held,  also,  that  the  exemption  in  the  statute  in  favor  of 
retailers  of  usual  domestic  remedies  in  "  rural  districts,"  does 
not  apply  to  the  case  of  a  dealer  in  a  village  of  twelve  thou- 
sand inhabitants,  such  rural  districts  being  "small  villages 
and  country  districts  having  no  store  where  pharmacy  is  prac- 
tised." 

Westchester  Co.  v.   Dressner,  23   App.   Div.,  215;    48 
N.Y.S.,  953. 

Assault  by  Administration   of   Drugs B.,  a  druggist, 

knowingly  put  up  for  A.  croton  oil,  to  be  administered  in 
candy  to  C.  as  a  practical  joke. 

Held,  in  an  action  for  assault  by  C,  that  B.  was  liable  for 


NOTES  OF   LEGAL   DECISIONS.  7 1 

any  injuries  sustained  by  plaintiff;  and  that  it  was  not  neces- 
sary that  the  dose  should  have  been  poisonous  or  deadly,  it 
being  sufficient  if  it  were  unusual  and  liable  to  cause  injury. 
State  V.  Monroe,  28  S.E.,  547  (N.  C). 

Murder — Evidence  Relevant  to  the  Charge. — The  fol- 
lowing case  is  of  curious  interest,  in  view  of  several  causes 
ccVebres  lately  growing  out  of  murders  by  medical  students. 

A.  v;as  indicted  for  murder.  The  State  contended  that  the 
body  of  the  murdered  man  had  been  carried  after  death  in  a 
buggy  and  in  a  sitting  posture. 

Held,  that  on  this  theory  it  was  proper  to  show  in  evidence 
that  A.,  being  present  at  the  coroner's  inquest,  in  talking  of 
the  killing  and  his  own  lack  of  fear  in  presence  of  a  corpse, 
said,  by  way  of  illustration,  that  when  the  body  of  an  old  man 
was  turned  over  to  the  students  when  he  was  at  the  medical 
school,  they  tied  its  hands  and  feet  together,  set  it  in  a  buggy, 
strapped  it  to  the  seat,  and  put  a  hat  on  its  head,  with  the 
result  that  every  one  thought  it  was  a  living  man. 
People  V.  Schwartz,  76  N.W.,  491. 

This  recalls  the  testimony  in  the  case  of  Carlyle  Harris,  to 
the  effect  that  before  his  wife's  murder  by  a  morphine  capsule, 
he  had  been  overheard  saying  to  one  of  his  paramours  that  she 
ought  to  marry  a  rich  old  man,  and  he  would  give  him  a  pill. 

-X'-rays.     See  supra,  under  "  Evidence." 


A  BRIEF 

FOR   THE  PROSECUTIONS  OF  UNLICENSED  PRAC- 
TITIONERS   OF    MEDICINE,  DEN- 
TISTRY, OR    PHARMACY. 

I.  Violations. 

What  are  violations  of  statutes  regulating  the  occupations 
referred  to,  must  necessarily  depend  in  each  jurisdiction  upon 
the  terms  of  the  State  law,  and  for  reasons  already  given  the 
statutes  of  the  different  States  are  not  here  published. 

The  English  Medical  Act,  which  aims  to  prevent  the  false 
assumption  of  medical  titles,  does  not  prohibit  the  practice  of 
medicine  by  unlicensed  persons,  but  provides  a  system  of  med- 
ical registration  whereunder  registered  practitioners  have  priv- 
ileges not  shared  by  the  unregistered,  and  the  latter  are  sub- 
jected to  penalties  if  they  pretend  to  be  registered.  The  Den- 
tal Act  is  of  like  nature.  But  one  who  practises  as  an  apothe- 
cary, without  license,  is  liable  to  a  penalty  under  the  Apothe- 
caries Act,  and  so  is  one  who,  without  license,  keeps  a  shop  to 
sell  poisons  in  violation  of  the  Pharmaceutical  Act. 

In  most  of  the  United  States,  any  person  practising  medicine, 
dentistry,  or  pharmacy  without  license  is  punishable  civilly  by 
a  penalty,  or  criminally  as  a  misdemeanant. 

The  New  York  act  regulating  the  practice  of  dentistry,  being 
more  minute  in  its  provisions  than  even  the  Medical  Act,  may 
serve  as  a  sufficient  illustration  of  American  legislation  of  this 
nature.* 

*  In  New  York  the  practice  of  Medicine,  Dentistry,  and  Pharmacy  is 
now  regulated  by  the  Public  Health  Law,  chapter  xxv.of  the  General  Laws, 
enacted  by  chapter  66 1  of  the  Laws  of  1S93. 

The  Medical  Law  consists  of  sections  140  to  153  inclusive  as  amended 
by  chapters  398  and  636,  Laws  of  1895,  and  chapter  in.  Laws  of  1S96. 

The  Dental  Law  consists  of  sections  160  to  164  inclusive  as  amended 


74  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

That  act,  which  consists  of  Sections  160-164  of  Chapter 
XXV.  of  the  General  Laws,  as  amended,  creates  a  State  board 
to  examine  candidates  for  license,  who  must  have  received  den- 
tal instruction,  attested  by  a  diploma  or  license,  and  also  a 
certain  preliminary  general  education.  Candidates  are  pre- 
sented to  the  board,  and,  if  successful  before  it,  are  licensed  by 
the  regents  of  the  university  of  the  State;  and  licentiates, 
before  engaging  in  practice,  must  register  their  licenses  with 
the  clerk  of  the  county  wherein  they  intend  to  practise,  and 
upon  moving  to  another  county  or  engaging  in  practice  therein 
must  register  in  the  latter  county  also. 

II.  Penalties. 

The  act,  by  Section  164,  entitled  "  Penalties,"  punishes  as  a 
misdemeanor  dental  practice,  or  the  holding  out  of  himself  as 
a  practising  dentist  to  the  public,  by  any  person  not  licensed 
and  registered  in  the  office  of  the  clerk  of  the  county  pursuant 
to  the  statute.  This  misdemeanor,  the  one  most  frequently 
prosecuted,  is  punished  by  a  fine  of  not  less  than  $50  for  the 
first  offence,  and  for  any  subsequent  offence  by  a  fine  of  not 
less  than  $100,  or  imprisonment  for  not  less  than  two  months, 
or  by  both  such  fine  and  imprisonment. 

The  other  misdemeanors  created  by  the  act  involve  in  their 
essence,  fraud  and  false  pretence,  and  are  punishable  by  a  fine 
of  not  less  than  $500,  the  usual  maximum  fine  for  a  misde- 
meanor, or  by  imprisonment  of  not  less  than  six  months,  or  by 
both  fine  and  imprisonment.  They  are  enumerated  in  subdi- 
vision (/>)  of  said  section,  and  consist  in  purchasing  or  selling 
diplomas,  certificates,  or  transcripts  contemplated  by  the  act, 
fraudulent  alterations  thereof,  fraudulent  use  thereof,  the  prac- 
tice of  dentistry  under  false  or  assumed  names,  and  the  false 
assumption  of  a  dental  or  medical  degree. 

The  purchase  and  sale  of  said  documents  is  not  uncommon, 
and  the  assumption  of  false  names  and  degrees,  especially  by 
persons  practising  in  so-called  dental  "  parlors,"  is  of  frequent 
occurrence. 

by  chapter  626,  Laws  of  1895,  chapter  297,  Laws  of  1896,  and  chapter  355, 
Laws  of  1898. 

The  Pharmacy  Law  consists  of  sections  180  to  190  inclusive  as  amended 
by  chapter  896,  Laws  of  1895,  chapter  253,  Laws  of  1896,  and  chapter  297, 
Laws  of  1897. 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  75 

Conviction  of  felony  works  a  forfeiture  of  license,  and  any 
person  who,  after  such  unreversed  conviction,  shall  practise 
dentistry,  is  subject  to  all  the  penalties  attaching  to  unlicensed 
practice  (Section  162,  subdivision  entitled  "Revocation  of 
licenses") 

The  only  felony  created  by  the  act  is  false  swearing  in  the 
affidavit  or  examination  required  of  candidates  for  license, 
which  is  made  perjury. 

III.  Constitutionality  of  the  Law. 

Such  laws  are  constitutional  if  they  operate  upon  all  in  the 
same  manner  and  degree;  and  a  statute  forbidding  any  one  to 
practise  these  professions  after  a  certain  date,  unless  he  shall 
first  pass  an  examination  before  a  State  board  of  examiners 
and  register  his  name  and  license  with  a  county  clerk,  is  a 
proper  exercise  of  the  police  power,  does  not  create  a  monop- 
oly, does  not  abolish  vested  rights  or  take  property  without 
due  process  of  law,  even  though  it  affect  persons  already  in 
practice,  and  does  not  necessarily  create  a  "  privileged  class," 
although  it  exempt  from  its  operation  general  classes,  e.g.,  per- 
sons already  practising,  and  medical  staffs  of  the  army  and 
navy,  marine,  and  other  hospitals. 

(i)  Medical  Laws. 

Dent  7'.  West  Va.,  129  U.  S.,  114. 

Hawker  -'.  New  York,  170  U.  S.,  189. 

Richardson  v.  State  (Ark.),  2  S.W.,  187. 

Ex  parte  McNulty  (Cal.),  19  Pac,  237. 

Brown  v.  People  (Colo.),  17  Pac,  104. 

Harding  ?'.  People  (Colo.),  15  Pac,  727. 

Williams  7.  People  (111.),  n  N.E.,  881. 

Eastman  v.  State  (Ind.),  10  N.E.,  99. 

Orr  V.  Meek  (Ind.),  n  N.E.,  787. 

State  V.  Green  (Ind.),  14  N.E.,  352. 

State  V.  Webster  (Ind.),  50  N.E.,  750. 

Commonwealth  7'.  Rice  (Ky.),  20  S.W.,  703. 

Uriscoll  V.  Commonwealth  (Ky.),  20  S.W.,  431. 

Hewitt  V.  Charier  (Mass.),  33  Mass,  (16  Pick.),  353. 

People  V.  Phippin  (Mich.),  70  Mich.,  6;  37  N.W.,  888. 


76  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

State  V.  Board  (Minn.),  26  N.W.,  123. 

State  V.  Fleischer  (Minn.),  42  N.W.,  696. 

State  V.  Hathaway  (Mo.),  21  S.W.,  1081. 

Gee  Wo  v.  State  46  (Nebr.),  54  N.W.,  513  (overruled  by 

O'Connor  v.  State,  46  Nebr.,  157 ;  64  N.W.,  719). 
Re  Roe  Chung  (N.  M.),  49  Pac,  952. 
People  V.  Hawker,  14  App.  Div.,  188;  rev'd  152  N.  Y., 

234- 
State  V.  Call  (N.  C),  121  N.  C,  643;  28  S.E.,  517. 
France  v.  State  (Ohio),  57  Ohio  St.,  i. 
State  V.  Morrill  (Ohio),  7  Ohio  Dec,  52. 
State  V.  Ottman  (Ohio),  6  Ohio  Dec,  195. 
State  V.  Randolph  (Oreg.),  31  Pac,  201. 
Commonwealth  ?'.  Wilson  (Pa.),  ig  Pa.  Co.  Ct.  R.,  521. 
Dowdell  V.  McBride  (Tex.),  45  S.W.,  397. 
Kennedy  v.  Schultz  (Tex.),  25  S.W.,667. 
Fox  V.  Territory  (Wash.  T.),  5  Pac,  603. 

(2)   Dental  Laws. 

Gosnell  v.  State  (Ark.),  12  S.W.,  392. 
State  V.  Creditor  (Kans.),  24  Pac,  346. 
State  V.  Vandersluis  (Minn.),  42  Minn.,  129. 
Commonwealth  7k  Gibson  (Pa.),  7  Pa.  Dist.  R.,  386. 

(3)   Pharmacy  Laws. 

People  V.  Moorman  (Mich.),  49  N.W.,  263. 

State  V.  Forcier  (N.  H.),  17  Atl.,  577. 

People  7'.  Ronte}^  4  N.  Y.  Sup.,  235;  Af'd   117   N.  Y., 

624. 
State  V.  Heinemann  (Wis.),  80  Wis.,  253  ;  49  N.W.,  818. 
In  a  few  cases  such  laws  have  been  held  to  be  unconstitu- 
tional, as  creating  privileged  classes  or  taking  property  with- 
out due  process  of  law. 

State  V.  Pennoyer,  65  N.  H.,  113  (physicians). 
State  V.   Hinman,  65   N.   H.,  103;   18   Atl.,   194   (den- 
tists). 
Rutter  7'.  Rodgers,  8  Pa.  Co.  Ct.  R.,  451. 
Cf.  the  dissenting  opinions  in 

People  V.  Phippin  (Mich.),  70  Mich.,  6;  37  N.W.,888. 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  77 

Ex  parte  Spinney  (Nev.),  lo  Nev.,  323. 

Hawker  v.  New  York  and  People  v.  Hawker  {supra). 
In  Hawker's  case  it  was  held  the  New  York  statute  forbid- 
ding any  one  to  practise  medicine  after  conviction  of  felony 
was  not  expostjacto,  in  its  application  to  persons  so  convicted 
prior  to  its  passage,  but  provided  only  a  test  of  character,  not 
an  additional  punishment. 

The  course  of  decision  in  the  case  was  curious.  Apparently 
the  record  did  not  show  that  defendant  was  ever  lawfully  enti- 
tled to  practise  medicine,  but  only  that,  having  been  convicted 
of  felony  prior  to  the  enactment  of  the  law,  he  practised  medi- 
cine thereafter  contrary  to  the  statute.  The  trial  judge  held 
the  statute  to  be  valid,  apparently /wy^rwrt:.  Four  out  of  five 
judges  of  the  appellate  division  reversed  the  judgment,  and, 
assuming  the  defendant  to  have  been  lawfully  practising  prior 
to  his  conviction,  held  the  statute  to  be  ex  post  Jacto  in  so  far 
as  it  operated  to  punish  an  old  offence  by  an  additional  pen- 
alty, to  wit,  the  deprivation  of  license.  Five  judges  of  the 
court  of  appeals  agreed  to  reverse  the  appellate  division  and 
affirm  judgment  of  conviction  upon  the  ground  that  the  record 
did  not  show  that  defendant  ever  was  entitled  to  practise. 
One  of  them  concurred  solely  because  the  record  did  not  show 
that  defendant  ever  was  a  physician;  but  the  other  four  judges 
seem  also  to  have  considered  that  even  if  defendant  had  pos- 
sessed such  a  right,  the  conviction  might  still  have  been  valid. 
Two  judges  dissented.  In  the  Supreme  Court  of  the  United 
States,  upon  a  reargument,  the  judgment  of  the  court  of  appeals 
and  the  conviction  were  affirmed,  without  regard,  apparently, 
to  the  failure  of  the  record  to  show  that  defendant  ever  had  a 
medical  license,  and  expressly  upon  the  ground  that  the  law, 
even  in  so  far  as  retroactive,  was  not  ex  post  Jacto,  but  was  con- 
stitutional; three  judges  dissenting.  It  would  seem,  therefore, 
that  the  judges  of  all  courts,  assuming  defendant  to  have  been 
lawfully  entitled  to  practise  when  the  law  was  enacted,  were 
evenly  divided  upon  the  question  of  the  statute's  constitu- 
tionality in  so  far  as  it  is  retroactive.  {^^^  Medical  Record, 
July  24,  1897,  vol.  Hi.,  p.  114.) 

No  doubt  at  all  was  expressed  as  to  the  validity  of  the  law 
in  its  prospective  operation. 

CJ.  France  v.  State  (Ohio),  57  Ohio  St.,  i;  47    N.E., 
1041. 


78  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 


IV.  The  Indictment  or  Complaint. 

It  is  sufficient  to  charge  the  offence  in  the  language  of  the 
statute  without  alleging  the  particular  acts  constituting  the 
practice.  But  the  facts  rendering  the  practice  unlawful — e.g., 
that  the  accused  was  not  at  the  time  of  practice  licensed  or 
registered — must  be  alleged. 

Eastman  ?'.  State  (Ind.),  lo  N.E.,  87. 

People  V.  Phippin  (Mich.),  70  Mich.,  6;  37  N.W.,  888. 

Sheldon  v.  Clark  (N.  Y.),  i  Johns.,  513. 

People  7'.  Dorthy  (N.  Y.),  20  App.  Div.,  308. 

County  of  Steuben  v.  Wood  (N.  Y.),  24  App.  Div.,  442. 

State  V.  Morrill  (Ohio),  7  Ohio  Dec,  52. 

State  V.  Pirlot  (R.  I.),  38  Atl.,  656. 
See  also — 

Cook  V.  People  (111.),  17  N.  E.,  849  (pharmacist). 

Dee  V.  State  (Miss.),  9  So.,  356  (physicians). 

Denton  ?'.  State  (Nebr.),  32  N.W.,  222. 

State?'.  Call  (N.  C),  121  N.  C,  643 ;  28  S.E.,517. 

State  V.  Ragland  (W.  Va.),  7  S.E.,  788  (itinerants). 

Whitlock  V.  Commonwealth  (Va.),  15  S.E.,  893. 
If  the  statute  enumerates  what  acts  shall  constitute  the  prac- 
tice of  medicine,  the  commission  of  some  or  all  of  those  acts 
must  be  pleaded. 

State  7'.  Carey  (Wash.),  4  Wash  St.,  788;  30  Pac,  729. 

Cf.  State  7'.  Hathaway  (Mo.),  21  S.W.,  1081. 

O'Connor  7'.  State  (Nebr.),  46  Nebr.,  157  ;  64N.W.,  719. 
An  indictment  is  defective  that  charges  practice  without  li- 
cense from  a  different  board  than  the  one  named  by  the  statute. 

Derrick  v.  State  (Tex.),  28  S.W.,  818. 
And  see  also — ■ 

State  V.  Fussell,  46  Ark.,  65. 

State  7A  Hale  (Mo.),  15  Mo.,  606. 

State  V.  Roberts,  33  Mo.  App.,  524. 

State  T.  Goldman  (Tex.),  44  Tex.,  104. 
It  is  not  necessary  to  negative  the  exemptions  of  the  statute  un- 
less they  are  in  the  enacting  clause.     That  the  accused  is  one  of  a 
class  exempted  from  the  statute's  operation  is  matter  of  defence. 

Harding  7'.  People  (Colo.),  15  Pac,  727. 

People  V.  Phippin  (Mich.),  70  Mich.,  6;  supra. 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  79 

State  V.  Smith  (Mo.),  i  Mo.  Ap.  R.,  129. 

County  of  Steuben  v.  Wood  (N.  Y.),  24  App.  Div.,  442 ; 
48  Supl.,  471. 

State  V.  Call  (N.  C),  121  N.  C,  643;  28  S.E.,  517. 

State  V.  Morril  (Ohio),  7  Ohio  Dec,  52. 

Krownestrot  v.  State  (Ohio),  8  Ohio  Dec,  119. 

Hale  V.  State  (Ohio),  51  N.E.,  154. 

State  V.  Barker  (Vt.),  18  Vt.,  195. 
When  the  statute  authorized  a  physician  to  register  upon 
affidavit  that  he  had  been  in  practice  for  ten  years  prior  to 
1874,  a  complaint  alleging  that  defendant  had  registered  upon 
affidavits  that  he  had  been  in  practice  for  twelve  years  prior  to 
1889  w^^  held  to  charge  sufficiently  the  offence. 

DriscoU  V.  Commonwealth  (Ky.),  20  S.W.,  431. 

Cf.  Rice  V.  Commonwealth  (Ky.),  20  S.W.,  703. 
To  allege  that  defendant  is  not  within  any  of   the  excepted 
classes  is  a  sufficient  negative. 

State  V.  Hathaway  (Mo.),  21  S.W.,  1081. 
It  is  not  necessary  to  allege  criminal  intent  or  receipt  of  fees 
unless  the  statute  makes  such  an  intent  or  compensation  an 
element  of  the  offence. 

Harding  v.  People  (Colo.),  15  Pac,  727. 

Eastman  v.  State  (Ind.),  10  N.E.,  99. 

Whitlock  V.  Commonwealth  (Va.),  15  S.E.,  893. 

Bishop's  Crim.  Proc,  sec.  523. 
Where  unlicensed  itinerant  venders  of  drugs  are  forbidden 
to  "  profess  to  treat  disease  "  it  is  not  necessary  to  allege  that 
drugs  were  sold  or  used. 

State  V.  Blair  (Iowa),  60  N.W.,  486. 
Where   the   offence   may  be   committed    in    several  ways,  to 
allege  various  ways — e.g.,  a  holding  out  by  printing,  writing, 
and  other  methods — is  not  to  charge  two  offences. 

State  V.  Blair  (Iowa),  60  N.W.,  486. 

V.  The  Usual  Issues  in  Such  Prosecutions. 

The  issues  in  these  prosecutions  are : 

(i)    Did  the  defendant  practise  medicine  or  dentistry,  or  act 
as  a  pharmacist  within  the  county? 

(2)  If  so,  was  he  licensed  or  registered  according  to  law? 

(3)  If  not,  was  he  within  any  exemption  of  the  statute? 


8o  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 


VI.  Order  and  Burden  of  Proof. 

The  prosecution  needs  only  to  prove  that  defendant  prac- 
tised or  held  himself  out  as  practising  medicine  or  dentistry,  or 
conducted  a  pharmacy,  as  alleged  in  the  indictment.  It  may 
then  rest. 

The  burden  of  proof  then  shifts  to  defendant,  who  must 
either — 

{a)  Rebut  the  prosecutor's  proof  by  testimony  that  he  did 
not  do  the  acts  testified  to  by  the  people's  witnesses;  or 

{b)  Show  that  he  is  licensed  and  registered  as  the  statute 
requires;  or 

\c)  Show  that  he  is  within  the  exemptions,  if  any,  of  the 
statute. 

If  the  prosecution   had   to   prove  that  defendant   was   not 
licensed  or  registered,  it  would  be  called  on  to  prove  a  nega- 
tive, and  this  might  be  impossible,  especially  in  jurisdictions 
where  any  diploma  is  a  license;  on  the  other  hand,  whether 
defendant  is  licensed  or  registered  is  a  fact  peculiarly  within 
his  knowledge  and  easy  for  him  to  prove;  the  question  is  not 
one,  therefore,  of  merits,  but  only  of  order  of  proof. 
Lawson's  "Presumptions  of  Evidence,"  p.  20. 
Apothecaries  Co.  7\  Bentley,  x  C.  &  P.,  538. 
Benham  7/.  State  (Ind.),  18  N.W.,  454;   116  Ind.,  112. 
People  V.  Nyce  (N.  Y.),  34  Hun,  298. 
People  V.  Fulda  (N.  Y.),  52  Hun,  65. 
People  V.  Rontey  (N.  Y.),  4  N.  Y.  Supl.,  235  ;   117  N.  Y., 

624. 
Raynor  v.  State  (Wis.),  62  Wis.,  289;  22  N.W. ,  430. 

Second  Offence. 

Where  defendant  is  charged  with  a  second  offence  his  previ- 
ous conviction  must  be  proved  if  alleged  in  the  indictment. 
People  V.  Reilly  (N.  Y.),  25  Misc.,  45. 
And    the    commission  of   the    first  offence   may  be  proved 
against  the  objection  of  defendant,  and  although  he  admits  the 
fact. 

People  7'.   Sickles   (N.  Y.),    26  App.  Div.,  470;    Af'd 
156  N.  Y.,  541 ;  N. Y.L.J. ,  Oct.  28,  1898,  53  Supl.,  288. 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 


VII.  The  Prosecution's  Case. 

The  prosecution  being  only  bound  to  make  proof  as  above, 
the  questions  arise: 

What  is  practice  of  medicine  or  holding  out? 

What  is  practice  of  dentistry  or  holding  out? 

What  is  the  conduct  of  a  pharmacy? 

The  answers  to  these  questions  must  depend  in  each  instance 
upon  the  phrasing  of  the  statute  under  which  the  defendant  is 
prosecuted  and  the  peculiar  circumstances  of  the  particular 
case. 

The  General  Rule. 

The  offence  may  be  established  prima  facie  by  proof  of  a 
single  case  of  practice,  together  with  any  circumstances  show- 
ing intent. 

Sheldon  v.  Clark  (N.  Y.),  i  Johns.,  513. 

Thompson  ?'.  Staats  (N.  Y,),  15  Wend,  395. 

Antle  V.  State,  6  Tex.  App.,  202, 

Ellison  7'.  State  (Tex.),  6  Tex.  App.,  249. 
That  defendant  displayed  a  physician's  sign  or  otherwise 
solicited  medical  practice  is  evidence  of  holding  out. 

State  V.  Van  Doran  (N.  C),  109  N.  C,  864. 


In  What  Practice  Consists. 

The  practice  of  medicine  has  been  said,  in  the  absence  of 
statutory  definition,  to  consist:  First,  in  judging  the  nature, 
character,  and  symptoms  of  the  disease;  second,  in  determin- 
ing the  proper  remedy  for  the  disease;  third,  in  giving  or  pre- 
scribing the  application  of  the  remedy  to  the  disease. 

Underwood  v.  Scott  (Kans.),43  Kans.,  714. 
And  it  has  been  also  said  that  the  test  of  medical  practice 
is  the  administration  of  medicine  or  the  use  of  instruments;  by 
which  criterion  the  giving  of  massage  is  not  practice  of  medi- 
cine, 

Smith  V.  Lane  632  (N.  Y.);  24  Hun,  632 
nor  is  a  clairvoyant's  treatment, 
6 


82  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

Wood  7'.  Kelly  (Mass.),  62  Mass.  (8  Cush.),  406. 
But  these  broad  definitions  cannot  be  accepted  without  lim- 
itation. The  physician  who  directs  nature  without  the  use  of 
drugs  or  instruments  often  succeeds  best.  And  the  ignorant 
impostor  who  pretends  to  cure  by  other  than  customary  methods 
is  often  one  of  the  worst  offenders  against  the  statute.  And 
accordingly,  contrary  to  the  doctrine  of  those  cases,  it  has  been 
held, 

in  Hewitt  v.  Charrier  (Mass.),  16  Pick.,  353, 
that  a  bonesetter  was  a  medical  practitioner; 

in  Bibber  v.  Simpson  (Me.),  59  Me.,  181, 
that  a  clairvoyant  was  a  medical  practitioner; 

in  People  v.  Phippin  (Mich.),  70  Mich.,  6  {supra), 
that  one  styling  himself  Dr.   Phippin,  magnetic  healer,  whd 
treated  the  sick  as  a  magnetic  healer,  and  signed  a  death  cer- 
tificate as  Dr.  Phippin,  Magnetic  Healer,  was  rightly  convicted 
of  practising  medicine  unlawfully ; 

in  Benham  v.  State  (Ind.),  116  Ind.,  112  ;  18  N.W.,  454, 
that  one  advertising  as  Dr.  Benham,  and  undertaking  to  cure 
the  opium  habit,  practised  medicine; 

and  in  Hardings  v.  People  (Colo.),  15  Pac,  727, 

Davidson  v.  Bohlman  (Mo.),  37  Mo.  Ap.,  576, 

Nelson  v.  Harrington   (Wis.),  72   Wis.,  591;  40  N.W. , 
228, 
that  attempting  to  cure  the  sick  by  electrical  treatment  was 
practice  of  medicine. 
Whether  the  acts  complained  of  constitute  practice  of 

MEDICINE    must    LARGELY    DEPEND    UPON    THE    DEFINITION 
of    such    practice,    IF    ANY,    CONTAINED    IN    THE    STATUTE. 

Thus  under  the  Ohio  statute  defining  a  medical  practitioner 
to  be  one  who  for  a  fee  prescribes  or  "recommends"  any  drug, 
medicine,  "  or  other  agency  "  for  the  treatment  of  any  bodily 
injury  or  disease,  it  was  held  that  the  general  words  were  so 
limited  by  the  special  words  that  an  "  osteopath  "  was  not  such 
a  practitioner  within  the  meaning  of  the  statute. 

Eastman  v.  State  (Ohio),  6  Ohio  Dec,  296. 
But  under  the  Illinois  statute  defining  such  practitioners  as 
persons  who  "  treat,  operate  on,  or  prescribe  for  any  physical 
ailment  of  another,"  an  "osteopath"  was  held  to  be  liable  to 
the  penalty  imposed  upon  those  unlawfully  practising  medi- 
cine. 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  83 

Eastman  ?'.  People  (111.),  71  111.  App.,  236. 
So  also  a  midwife — 

People  V.  Arendt  (111.),  60  111.  App.,  89. 

Cf.  Luck  V.  Ripon  (Wis.),  52  Wis.,  196. 
In  Nebraska  the  performances  of  a  Christian  Scientist  were 
held  to  be  practice  of  medicine  within  the  definition  of  the 
statute. 

State  V.  Buswell  (Nebr.)  40  Neb.,  158; 
while  the  contrary  was  held  in  Rhode  Island, 

State  V.  Mylod  (R.  I.),  40  Atl.,  753. 
Under  a  statute  of  Maine  allowing  recovery  of  compensa- 
tion for  medical  services  by  any  one  possessed  of  a  certifi- 
cate of  good  moral  character  from  town  officers,  it  was  held 
that  a  Christian  Scientist  having  such  a  certificate  might  sue 
for  fees.  The  case,  however,  is  no  authority  upon  the  ques- 
tion, what  constitutes  medical  practice. 

A  farmer  attempting  to  cure  cancer  by  a  recipe  and  holding 
himself  out  as  a  cancer  doctor  was  held  to  have  practised 
medicine. 

Musser's  Executors  v.  Chase,  29  Ohio  St.,  577. 
Where  the  statute  permits  one  in  practice  at  the  date  of  its 
enactment  to  continue  in  practice,  such  a  person  is  a  "  physi- 
cian," although  not  graduated  as  a  doctor. 

Harrison  v.  State  (Ala.),  15  So.,  563, 
A  shoemaker  also  engaging  in  medical  practice  is  not  ap- 
parently a  reputable  and  honorable  practitioner  of  medicine  in 
Rhode  Island. 

Paquin  v.  St.  Bd.  of  Health  (R.  I.),  33  Atl.,  870. 
A  license  to  practise  medicine  authorizes  the  holder  to  prac- 
tise surgery. 

Clinton  Co.  v.  Ramsey  (111.),  20  111.  App.,  577. 

Wetherell  v.  Marion  Co.,  28  Iowa,  22. 

Stewart  v.  Raab  (Minn.),  56  N.W.,  256. 
A  homoeopathist  or  eclectic  is  a  medical  practitioner,  and 
one  medical  school  is  not  favored  at  the  expense  of  another. 

P'orce  V.  Gregory  (Conn.),  27  Atl.,  11 16. 

Patten  v.  Wiggin,  51  Me.,  594. 

Corsi  V.  Maretzek  (N.  Y.),  4  E.  D.  Smith,  i. 

White  V.  Carroll  (N.  Y.),  42  N.  Y.,  161. 

Raynor  v.  State  (Wis.),  62  Wis.,  289. 

Cf.  Dowdell  V.  McBride  (Tex.),  45  S.W.,    397. 


84  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

Cf.  State  V.  Mylod  (R.  I.),  4°  Atl.,  753. 
Defendant's  admissions  upon  another  trial   are  admissible 
against  him  to  prove  practice,  although  his  self-serving  state- 
ment may  be  excluded. 

Suffolk  Co.  V.  Shaw,  21  App.  Div.,  146. 
But  one  cannot  under  guise  of  selling  patent  medicines  or 
drugs  prescribe  and  advise  as  a  physician. 

Underwood  v.  Scott  (Kans.),  43  Kans.,  714;    23  Pac, 
942. 

Alcott  V.  Barber  (N.  Y.),  i  Wend.,  526. 

Thompson  v.  Staats  (N.  Y.),  15  Wend.,  395. 

Smith  V.  Tracy  (N.  Y.),  2  Hall,  465. 
(The  above  principle  is  applicable  to  the  cases  of  druggists, 
chemists,  apothecaries,  etc.,  who  undertake  to  make  diagnosis 
and  give  advice.) 

Matthei  v.  Wooley  (111.),  69  111.  App.,  634. 
One  who  practises  under  the  guise  of  being  the  pupil  or  as- 
sistant of  a  physician  may  be  within  the  purview  of  the  statute. 

Richardson  v.  State  (Ark.),  2  S.W.,  188. 

State  V.  Paul  (Nebr.),  76  N.W.,  861. 
But  it  has  been  held  that  one  called  doctor  by  his  neighbors, 
and  accustomed  to  gather  herbs  and  advise  his  sick  friends 
without  fee,  was  held  not  to  be  a  medical  practitioner. 

Nelson  v.  State  (Ala.),  12  So.,  421. 
And  that  a  farrier  occasionally  prescribing  for  human  beings 
is  not  an  apothecary. 

Apothecaries'  Co.  v.  Warburton,  3  Barn  &  Ad.,  40. 

Cf.  Steed  v.  Henley,  i  C.  &  P.,  574. 
So,  too,   it  has  been   said  that  to  advise  and  prescribe  for 
several  persons  in  one  day  does  not  constitute  several  offences, 
the  gist  of  practice  being  customary  action. 

Apothecaries'  Co.  v.  Jones,  i  Q.  B.  D.,  (1893),  89. 

Cf.  Greenfield  v.  Oilman  (N.  Y.),  140  N.  Y.,  168. 

Cf  Pedgrift  v.  Chevallier,  8  C.  B.  N.  S.,  240. 
And  upon  the  whole  topic,  see — 

"  A  System   of   Legal    Medicine,"    by    Allan   McLane 
Hamilton,  and  others  (vol.  i.,  pp.  602-604). 


A    REVIEW    OF    CASES   AFFECTING    MEDICAL    MEN,  85 


Dentistry. 

The  same  general  principles  that  apply  to  medical  practice 
afford  the  test  of  what  is  dental  practice. 

Evidence  that  defendant  leased  rooms  with  the  avowed  pur- 
pose of  practising  dentistry,  performed  dental  work  for  several 
persons,  and  worked  at  the  bench,  establishes  the  practice. 

Ferner  v.  State  (Ind.),  51  N,E.,  360. 
See  as  to  the  status  and  definition  of  dentistry — 

Maxon  v.  Perrott  (Mich.),  17  Mich.,  332. 

People  V.  De  France  (Mich.),  104  Mich.,  503. 

State  ex  rel.  Flickenger  v.  Fisher  (Mo.),  119  Mo.,  353. 

Whitcomb  v.  Reed  (Miss.),  31  Miss.,  567. 

Lee  V.  Griffin,  30  L.  J.  Q.  B.,  252. 

"  Code  de  Chirurgien-Dentiste,^^  p.  88. 

Hamilton's  "  System  of  Legal  Medicine,"  vol.  i.,  p.  641. 
See  also  the  statute  in  each  State. 


Pharmacists  and  Druggists. 

See  the  Hypophosphite  &  Borax  Cases  (Minn.),  41  Minn., 
74;  42  N.W.,  781. 

It  is  a  violation  of  the  Illinois  Act  for  the  proprietor  of  a 
drug-shop  to  instruct  his  boy  to  sell  anything  but  poison,  leav- 
ing the  lad  to  judge  what  are  poisons. 

Haas  V.  People  (111.),  27  111.  App.,  416. 
Cf.  Pharmaceutical  Soc.  v.  Wheeldon  (Eng.),  24  Q.  B. 
Div.,  683. 
Quinine  is  not  a  "domestic  remedy"  within  the  Illinois  act, 
and  its  sale  is  evidence  of  unlawful  practice  of  pharmacy. 
Cook  V.  People  (111.),  17  N.E.,  849. 
Sale  of  paregoric  and  quinine  pills  in  the  original  packages, 
by  an  unlicensed  clerk  in  a  department  store,  is  a  violation 
of  the  pharmacy  act. 

People  V.  Abraham  (N.  Y.),  16  App.  Div.,  58. 
A  physician  who  sells  drugs  which  he  has  not  prescribed 
may  come  within  the  purview  of  the  statute. 
State  V.  Tones  (Oreg.),  22  Pac,  840. 
Cf.  Suffolk  Co.  V.  Shaw  (N.  Y.),  21  App.  Div.,  146. 


86  A    REVIEW    OF   CASES   AFFECTING    MEDICAL   MEN. 

CJ.  People  V.  Rontey  (N.  Y.),  4  N.  Y.  Supl.,  235  {supra). 
And  see  the  cases  cited  below  under  "  Defences." 
And  see  further  as  to  the  relations  of  physicians,  surgeons, 
and  apothecaries  among  themselves — 

Allison  V.  Hayden,  4  Bing.,  617. 

Apothecaries  Co.  v.  Lotinga,  2  Mo.  &  R.,  495. 


VIII.  The  Case  of  Defendant. 

Where  defendant  has  not  successfully  demurred  to  the  in- 
dictment, and  the  prosecution,  by  proving  practice,  has  shifted 
the  burden  of  proof,  the  former  must,  in  order  to  disprove  the 
charge,  establish,  as  aforesaid,  either: 

(i)  That  the  prosecution's  testimony  is  not  true  beyond 
reasonable  doubt;  or 

(2)  That  he  has  a  right  to  perform  the  acts  proved  because — 

(d)  He  was  licensed  and  registered  as  required  by  the 
statute;  or 

{J))  Was  within  one  of  the  classes  exempted  from  the  opera- 
tion of  the  statute. 


I.  As  to  Disproof  of  the  Prosecution's  Case. 

Where  the  testimony  against  the  accused  is  that  of  his  actual 
patients,  there  is  little  room  for  reasonable  doubt  in  the  minds 
of  intelligent  and  conscientious  jurors;  especially  if  the  pa- 
tients testify  reluctantly  and  under  subpoena.  But  sometimes, 
especially  in  rural  districts  and  small  towns,  and  where  the 
witnesses  are  detectives  or  persons  hostile  to  the  accused,  both 
grand  and  petit  jurors,  swayed  by  personal  predilections,  decide 
the  issues  in  violation  of  their  oaths,  not  upon  the  testimony, 
but  upon  their  sentiments  or  information  extraneous  to  the 
case.  Thus  in  Herkimer  county  a  grand  jury  thrice  refused, 
upon  overwhelming  evidence  and  in  disregard  of  explicit  in- 
structions, to  indict  a  notorious  violator  of  the  dental  law,  who 
had  even  gone  to  the  extent  of  perjuring  himself  in  order  to 
qualify  as  an  expert  in  a  malpractice  case;  and  their  breach 
of  duty,  which  was  largely  due  to  the  fact  that  the  accused 
had  been  reported  by  an  unpopular  rival,  was  applauded  by 
the  local  press. 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  87 

So  in  a  Warsaw  case  the  grand  jury  refused  to  indict  an  un- 
registered native  of  the  town,  but  actually  did  indict  his  unreg- 
istered rival  practitioner  who  had  recently  come  into  the 
neighborhood. 

But  although  the  prosecution's  case  may  in  rare  instances 
be  overcome  by  such  improper  appeals  to  prejudice,  especially 
if  it  rests  solely  on  the  testimony  of  detectives  or  agents  who 
have  submitted  to  defendant's  practice  for  the  purpose  of  tes- 
tifying against  him;  nevertheless,  testimony  of  such  agents  is 
competent,  and  if  believed  sufficient,  to  sustain  a  verdict  of 
guilty. 

People  V.  Noelke,  i  N.  Y.  Cr.  R.,  252,  at  p.  264;  af'd 
94  N.  Y.,  197. 


II.  Proof  of  License. 

(A)  State  License. 

Where  the  license  is  conferred  by  the  State  the  certificate 
may  readily  be  produced  and  proved.  In  some  jurisdictions  a 
transcript  of  the  record  is  expressly  mdidQ  prima  facie  evidence 
of  its  facts. 

(B)   Diplomas. 

Where  the  license  required  is  a  diploma,  the  accused  may 
have  more  difficulty  in  establishing  his  defence,  especially  if 
his  diploma  is  from  a  school  without  the  jurisdiction  and  the 
court  insists  on  strict  rules  of  evidence;  in  such  a  case  defend- 
ant must  show  the  authority  of  the  institution  from  which  he 
holds  the  diploma  to  confer  the  degree,  and  also  the  regularity 
of  the  document,  and,  semble,  that  the  bearer  has  complied  with 
preliminary  requirements. 

Moises  V.  Thornton,  8  T.  R.,  303. 

Chadwick  7\  Bunning,  2  C.  &  P.,  106. 

Collins  V.  Carnegie,  i  A.  &  E.,  695. 

Andrews  v.  Styrap,  26  L.  T.  R.,  704. 

Hill  V.  Boddie  (Ala.),  2  Stew.  &  P.,  56. 

Hunter  v.  Blount  (Ga.),  27  Ga.,  76. 
In  practice,  the  rigor  of  the  strict  rule  is  often  or  generally 
relaxed. 


88  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

Walmisley  v.  Abbott,  i  C.  &  P.,  309,  495. 

Finch  V.  Gridley's  Executors  (N.  Y.),  25  Wend.,  469. 

Wendel  v.  State  (Wis.),  62  Wis,,  300. 

(C)  Registration. 

(i)  Where  the  accused  is  entitled  to  register,  and  has  done 
all  required  of  him  by  the  statute  to  that  end,  it  would  seem 
that  he  will  not  be  chargeable  with  failure  to  register  due  to 
the  fault  of  the  registering  officer — e.g.,  where  pursuant  to  the 
law  he  mails  his  credentials  to  a  county  clerk,  who  fails  to 
make  the  proper  registry. 

Parish  v.  Foss,  75  Ga.,  439. 

Pettitz/.  State  (Tex.),  28  Tex.  App.,  240;   14  S.W.,  127. 

Cf.  Carberry  v.  People,  39  111.  App.,  506. 

Cf.  Hamilton,  "System  of  Legal  Medicine,"  p.  601. 

(2)  But  if  a  State  board  refuse  to  grant  a  license  to  A,  he 
cannot  show  by  way  of  defence  to  a  prosecution  for  unlawful 
practice  that  such  refusal  was  wrongful.  If  the  board  deny  his 
rights,  the  remedy  is  by  mandamus. 

Kowenstrot  v.  State  (Ohio),  8  Ohio  Dec,  119. 

(3)  The  fact  that  defendant  is  registered  in  one  county  of 
the  State  is  not  ordinarily  a  defence  to  a  charge  of  practising 
without  registration  in  another. 

Orr  V.  Meek  (Ind.),  in  Ind.,  40;   11  N.E.,  787. 

Hayes  v.  Webster   (N.  Y.),  N.  Y.  Daily  Reg.,  Jan.  26, 
1884. 

Ege  V.  Commonwealth  (Pa.),  8  Cent,  539;  9  Atl.,  471. 

Hilliard  v.  State  (Tex.),  7  Tex.  App.,  69. 
The  case  of 

Martino  v.  Kirk,  55  Hun,  474, 
which  is  cited  to  the  contrary,  is  ill-considered  and  scarcely 
authority.  It  seems  to  have  been  decided  under  the  law  of 
1880,  which  had  been  repealed  by  the  law  of  1887;  and  the 
question  was  presented  collaterally  in  a  civil  action  to  recover 
compensation  for  services. 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  89 

(D)  Exemptions. 
(i)  Fees. 

Where  the  statute  forbids  only  practice  for  compensation  it 
is  a  defence  that  the  services  proven  were  rendered  gratuitously. 

Nelson  v.  State  (Ala.),  12  So.,  421. 
But  actual  payment  need  not  be  shown  if  the  testimony  is  such 
that  the  jury  may  properly  infer  from  it  an  intent  by  the  ac- 
cused to  receive  compensation, 

State  V.  Hale  (Mo.),  15  Mo.,  606; 
or  if  the  statute  only  forbids  the  practice  in  general  terms 
without  mention  of  compensation, 

Eastman  v.  State  (Ind.),  10  N.E.,  99. 

(2)  Emergencies. 

If  the  statute  exempt  from  its  operation  persons  rendering 
aid  in  emergency,  it  must  be  shown  that  the  attendance  of  a 
licentiate  was  not  obtainable.  The  fact  that  licensed  physi- 
cians have  failed  to  effect  a  cure  is  not  an  emergency  justify- 
ing practice  by  an  unlicensed  person. 

People  V.  Lee  Wah  (Cal.),  71  Cal.,  80;  11  Pac,  851. 

(j)    Assistants. 

(ci)  When  the  statute  permits  students  to  assist  preceptors 
for  purposes  of  clinical  instruction  or  otherwise,  a  student  can- 
not under  the  pretence  of  assisting  perform  independent  acts 
of  practice  out  of  the  presence  of  his  preceptor. 
Richardson  v.  State  (Ark.),  2  S.W.,  188. 
State  V.  Paul  (Nebr.),  76  N.W.,  861. 
{b)   So  the  unregistered  assistant  of  a  pharmacist  may  not 
do  any  acts  forbidden  to  the  unlicensed. 

Pharmaceutical  Society  v.  Wheeldon,  24  Q.  B.  Div.,  683. 
(J)  But  if  in  the  principal's  absence  a  servant  sell  contrary  to 
orders,  the  principal  will  not  be  liable. 

Westchester  Co.  v.  Dressner  (N.  Y.),  23  App.  Div.,  215  ; 
48  N.  Y.  SupL,  953. 
{d)  So  under  the  New  York  dental  statute  exempting  the  stu- 


go  A    REVIEW    OF   CASES    AFFECTING    MEDICAL    MEN. 

dent  of  a  licentiate  "  assisting  his  preceptor  in  dental  opera- 
tions while  in  the  presence  and  under  the  personal  supervision 
of  the  instructor,"  it  has  been  held  in  a  number  of  unreported 
cases  that  such  a  student  cannot  perform  independent  opera- 
tions or  carry  on  a  branch  of  the  business,  but  must  in  fact 
"assist"  the  preceptor, 

(4)  Sale  of  Drugs  in  Rural  Communities. 

Where  the  statute  exempts  from  provisions  of  pharmacy  acts, 
traders  in  rural  communities,  it  has  been  held  that  a  town  of 
twelve  thousand  inhabitants  is  not  a  rural  community. 

Westchester  Co.  v.  Dressner  (N.  Y.),  23  App.  Div.,  215 ; 
48  N.  Y.  Supl.,  953. 
The  principles  of  the  foregoing  cases  apply  to  exemptions 
generally. 


MANSLAUGHTER,  CHRISTIAN  SCIENCE, 
AND  THE  LAW. 


By  WILLIAM  A.  TURRINGTON. 

The  recent  death  of  Mr.  Harold  Frederic  under  the  treat- 
ment of  a  Christian  scientist,  and  the  latter's  indictment  by  an 
English  jury,  have  renewed  the  discussion  by  professional  and 
lay  journals  of  what  is  and  what  should  be  the  bearing  ol  the 
law  upon  such  cases. 

The  New  York  Times,  of  which  he  was  correspondent,  writes 
editorially  of  "  Faith-Cure  Murders  " ;  The  Sun,  of  "  Manslaugh- 
ter by  Christian  Science."  The  current  law  journals  comment 
upon  the  case.  Unfortunately,  such  instances  are  neither  mod- 
ern nor  rare. 

Coincidently  with  Mr.  Frederic's  death  from  pneumonia  in 
England,  the  newspapers  also  report  the  deaths  of  Messrs. 
Kershaw  in  Tacoma,  and  McDowell  in  Cincinnati,  and  Mrs. 
Brown,  of  Washington ;  the  first  of  pneumonia,  the  second  of 
typhoid  fever,  the  last  of  an  unnamed  malady — all  the  diseases 
being  complicated  with  Christian  Science.  It  is  only  Frederic's 
prominence  as  a  journalist  and  fiction  writer  that  brings  his 
case  nearer  home  to  the  multitude. 

The  ordinary  quack  is  content  to  lay  claim  to  some  special 
skill  or  knowledge  in  the  use  of  natural  methods  or  remedies. 
Thus  in  February,  1806,  one  John  M.  Crous  induced  the  same 
Legislature  of  New  York  that  in  the  following  April  chartered 
the  existing  county  and  State  medical  societies,  to  authorize 
by  special  act  the  purchase  for  $1,000  and  publication  in  the 
State  papers  of  his  "perfect  and  infallible  remedy  and  cure  for 
hydrophobia  or  canine  madness."  And  a  wonderful  remedy  it 
was.* 

*  Here  is  the  prescription,  and  it  certainly  seems  adequate  to  put  an 
end  to  hydrophobia  or  any  other  malady  : 


92  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

In  the  following  year  an  act  (ch.  104,  LI,  1807)  passed  pro- 
hibiting unlicensed  practice  of  medicine;  with  the  proviso, 
however,  that  it  should  not  be  construed  to  debar  any  one  from 
using,  or  applying  for  the  benefit  of  the  sick,  roots  or  herbs 
the  growth  or  product  of  the  United  States.  This  exception 
favored  at  once  the  principle  of  protection  to  the  industry  of 
home  herbs  and  the  teachings  of  the  Thomsonian  or  botanic 
school  of  medicine,  founded  upon  the  simple,  obvious  theory 
that  mineral  remedies  are  injurious  because,  their  nature  being 
to  remain  in  the  earth,  they  tend  to  drag  man  down  to  the 
grave;  while  herbs,  having  by  nature  an  upward,  skyward 
thrust,  tend,  on  the  contrary,  to  the  advancement  of  those 
"  whose  midst "  they  penetrate. 

This  system,  once  as  popular  as  Christian  Science,  furnished 
the  leading  American  case  on  manslaughter  by  medical  mal- 
practice, that  of  Commonwealth  r.  Thomson  (6  Mass.,  134). 
It  there  appeared  that  Samuel  Thomson,  founder  of  the  system, 
undertook  to  cure  "  all  fevers,  whether  black,  gray,  green,  or 

"First:  Take  one  ounce  of  the  jawbone  of  a  dog,  burned  and  pulver- 
ized, or  pounded  to  fine  dust. 

"  Secondly  :  Take  the  false  tongue  of  a  newly  foaled  colt  ;  let  that  be 
also  dried  and  pulverized  ;  and, 

"  Thirdly  :  Take  one  scruple  of  verdigris,  which  is  raised  on  the  sur- 
face of  old  copper  by  lying  in  the  moist  earth  ;  the  coppers  of  George  I. 
or  II.  are  the  purest  and  best.  Mix  these  ingredients  together,  and  if  the 
person  be  an  adult  or  full  grown,  take  one  common  teaspoonful  a  day,  and 
so  in  proportion  for  a  child  according  to  its  age.  In  one  hour  after  take  the 
filings  of  the  one-half  a  copper  of  the  above  kind,  if  to  be  had  ;  if  not, 
then  a  small  increased  quantity  of  any  baser  metal  of  the  kind  ;  this  to  be 
taken  in  a  small  quantity  of  water. 

"The  next  morning,  fasting  (or  before  eating),  repeat  the  same  as 
before.  This,  if  complied  with  after  the  biting  of  a  dog,  and  before  the 
symptoms  of  madness,  will  effectually  prevent  any  appearance  of  disorder  ; 
but  after  the  symptoms  shall  appear  a  physician  must  immediately  be 
applied  to,  to  administer  the  following,  viz. : 

"  Three  drachms  of  the  verdigris  of  the  kind  before  mentioned,  mixed 
with  half  an  ounce  of  calomel,  to  be  taken  at  one  dose.  This  quantity  the 
physician  need  not  fear  to  administer,  as  the  reaction  of  the  venom  will 
then,  diffuse  through  the  whole  system  of  the  patient,  neutralize  consider- 
ably the  powerful  quality  of  the  medicine  ;  and, 

"Secondly:  If  in  four  hours  thereafter  the  patient  is  not  completely 
relieved,  administer  four  grains  of  pure  opium  or  one  hundred  and  twenty 
drops  of  liquid  laudanum. 

'  N.B. — The  patient  must  be  careful  to  avoid  the  use  of  milk  for  sev- 
eral days  after  taking  any  of  the  foregoing  medicine. 

"JOHN    M.  CROUS." 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  93 

yellow."  His  staple  remedies  were  "coffee,"  so-called,  "well 
my  gristle,"  and  "ram-cats."  Being  summoned  on  January  2d, 
1809,  to  attend  Ezra  Lovett,  ill  of  "a  cold,"  he  ordered  a  fire 
built,  put  Lovett's  feet  on  a  stove  of  hot  coals,  wrapped  him  in 
a  blanket,  and,  with  a  powder  given  in  water,  "pulced"  him — 
to  use  the  simple  language  of  the  day — violently  thrice  within 
half  an  hour,  meantime  administering  "copiously  the  warm 
"coffee."  He  then  put  Lovett  to'  bed,  and  sweated  and 
"  puked  "  him  pretty  steadily  for  three  days,  the  patient  grow- 
ing weaker  and  weaker,  until,  poor  soul !  he  could  puke  no 
more.  Then  Thomson  asked  "how  far  down  the  medicine  had 
got,"  and,  Lovett  indicating  his  chest,  the  quack  said  that  the 
medicine  "  would  soon  get  down  and  unscrew  his  navel."  On 
the  third  day  the  patient  "  lost  his  mind  and  went  into  convul- 
sions," which  condition  lasted  until  the  eighth  day,  January 
loth,  when  he  died.  The  "coffee"  proved  to  be  a  decoction 
of  marshrosemary  and  the  bark  of  the  bayberry  bush;  the 
powder  was  Indian  tobacco  or  Lobelia  inflata.  There  was  no 
evidence  that  defendant  had  killed  any  one  else;  on  the  con- 
trary, there  was  testimony  of  benefit  in  one  case  from  his  treat- 
ment. The  court,  therefore,  did  not  put  him  to  his  defence, 
but,  ruling  that  the  commonwealth  had  failed  to  make  out  a 
case  even  of  manslaughter,  charged  the  jury  to  this  effect: 
Deceased,  beyond  reasonable  doubt,  lost  his  life  by  defend- 
ant's unskilful  treatment.  But  there  could  be  no  murder,  un- 
less the  prisoner  was  wilfully  regardless  of  his  social  duty 
and  determined  on  mischief,  of  which  there  was  no  proof;  on 
the  contrary,  his  intent  was  to  cure.  Neither  could  there  be 
manslaughter;  for,  although  defendant's  ignorance  was  very 
apparent,  nevertheless,  if  he  honestly  intended  to  cure,  he 
could  not  be  guilty  of  that  crime  on  account  of  death  unexpect- 
edly ensuing  from  his  treatment,  unless  he  was  engaged  in  an 
unlawful  act;  and  there  was  no  law  in  Massachusetts  forbid- 
ding any  man,  honestly  intending  to  cure,  from  prescribing  for 
a  sick  man  with  the  latter's  consent.  The  court  cited  Lord 
Hale  as  authority  for  the  proposition  that,  "  if  a  physician, 
whether  licensed  or  not,  gives  a  person  a  potion,  without  any 
intent  of  doing  him  any  bodily  hurt,  but  with  intent  to  cure  or 
prevent  a  disease,  and,  contrary  to  the  expectation  of  the  phy- 
sician, it  kills  liim,  he  is  not  guilty  of  murder  or  manslaugh- 
ter"; and,  accordingly,  laid  down  this  law  for  the  case: 


94  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

"The  death  of  a  man,  killed  by  voluntarily  following  a  med- 
ical prescription,  cannot  be  adjudged  a  felony  in  the  party 
prescribing,  unless  he,  however  ignorant  of  medical  science  in 
general,  had  so  much  knowledge  or  probable  information  of 
the  fatal  tendency  of  the  prescription  that  it  may  be  reason- 
ably presumed  by  the  jury  to  be  the  effect  of  obstinate,  wilful 
rashness,  at  the  least,  and  not  of  an  honest  intention  and  ex- 
pectation to  cure." 

The  court  further  said  that  if  the  solicitor-general  had 
proved,  as  he  promised  to  do  in  his  opening,  that  Thomson 
had  killed  others  by  his  treatment,  it  would  have  been  left  to 
the  jury  to  say  whether  on  the  whole  evidence  they  would  sus- 
tain the  charge  of  manslaughter;  which  they  might  justly  have 
done  if  they  had  found  that  defendant  acted  from  "  obstinate 
rashness  and  foolhardy  presumption,  although  without  intent 
to  do  Lovett  bodily  harm  " ;  for  it  would  not  have  been  lawful 
for  him  again  to  administer  a  medicine  of  which  he  had  such 
fatal  experience.  Upon  this  reasoning  Thomson  was  ac- 
quitted; and  his  case  having  proved,  as  a  precedent,  a  strong 
shield  for  manslaughtering  charlatans,  by  establishing  what 
has  been  called  the  humane  American  rule  as  contrasted  with 
the  strict  rule  of  common  law,  it  is  well  to  state  succinctly  the 
reasons  why  he  escaped  conviction,  viz. :  (i)  because  there  was 
no  statute  in  Massachusetts  prohibiting  medical  practice  by  the 
ignorant  and  unlicensed;  (2)  because  there  was  no  proof  that 
Thomson  (a)  knew  his  treatment  to  be  dangerous  or  (/))  had 
any  other  intent  than  to  cure  in  good  faith. 

In  1842  the  question  arose  in  New  York,  upon  an  applica- 
tion for  a  bill  of  discovery,  in  Marsh  7'.  Davison  (9  Paige, 
580),  whether  it  was  slanderous  to  have  said  of  complainant 
that  he  was  guilty  of  malpractice  as  a  cancer  doctor  and  had 
killed  a  woman  in  Schoharie.  Davison  not  being  licensed  to 
practice,  the  court  held  that — inasmuch  as  he  might  be  guilty 
of  manslaughter,  for  that  reason,  if  the  patient  died  under  his 
treatment — the  words  might  be  slanderous. 

It  thus  appears  that — even  accepting  the  benign  rule  of 
Thomson's  case,  which,  as  we  shall  see  presently,  was  ill  stated 
— wherever  a  statute  makes  the  unlicensed  practice  of  medi- 
cine a  misdemeanor,  if  death  result  from  the  treatment  of  a 
non-licentiate  he  is  guilty  of  manslaughter  at  least,  no  matter 
how  honest  his  intent.     This  is  the  rule  of  common  law  and  of 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  95 

the  New  York  penal  code,  which  defines  as  manslaughter  the 
killing  of  one  human  being  by  the  act,  procurement,  or  omis- 
sion of  another,  without  design  to  effect  death,  by  a  person 
engaged  in  committing  or  attempting  to  commit  a  misdemeanor 
affecting  the  person  or  property,  either  of  the  person  killed  or 
of  another. 

In  1844  the  case  of  Rice  v.  The  State  (8  Mo,,  561)  was  de- 
cided in  Missouri.  Rice,  a  Thomsonian,  undertook  by  the 
same  methods  used  on  Lovett  to  cure  Mrs.  Keithley  of  sciatica. 
She  had  not  been  so  well  for  years  as  when  he  began  to  treat 
her,  and  was  within  six  weeks  of  giving  birth  to  her  fourth 
child.  Under  his  system  she  fell  into  premature  labor  and 
died  within  about  ten  days.  He  was  convicted  of  manslaugh- 
ter ;  but  the  appellate  court,  adopting  the  rule  in  Thomson's  case, 
the  facts  being  substantially  the  same,  reversed  the  judgment. 

In  188 1  another  case  arose,  in  Iowa,  State  v.  Schulz  (55  la., 
628).  Schulz  treated  a  sick  woman  by  acupuncture  and  an 
irritating  oil,  according  to  the  system  of  Herr  Baunscheidt, 
who,  having  been  much  benefited  by  the  bitings  of  small  in- 
sects, sought  to  give  the  world,  for  a  consideration,  a  simula- 
crum of  his  experience.  Defendant  admitted  that  he  did  not 
know  the  composition  of  the  oil,  that  being  Baunscheidt's 
secret.  The  patient  died.  Schulz  claimed  that  if  he  had  not 
been  interfered  with  he  could  have  helped  her,  and  produced 
twenty-three  witnesses  to  testify  that  Baunscheidtismus,  as  ad- 
ministered by  him,  had  benefited  them.  Schulz  was  convicted, 
but  the  appellate  court  reversed  the  judgment,  following  the 
cases  of  Thomson  and  Rice,  and  expressed  this  conclusions 
"The  interests  of  society  will  be  subserved  by  holding  a  phy- 
sician civilly  liable  in  damages  for  the  consequences  of  his 
ignorance,  without  imposing  upon  him  criminal  liabilities 
when  he  acts  with  good  motives  and  honest  intentions."  The 
adoption  of  this  theory  by  the  New  York  statute  of  1844  en- 
abled quackery,  in  the  words  of  Beardesley,  J.,  to  "boast  its 
triumphant  and  complete  establishment  by  law "  (Bailey  v. 
Mogg,  4  Den.  60).  And  the  people  of  Iowa,  instead  of  adher- 
ing to  it,  have  passed,  since  the  Schulz  case,  a  law  forbidding 
medical  practice  to  be  unlicensed. 

Notwithstanding  these  acceptances  of  the  rule  in  Thomson's 
case  by  other  jurisdictions  as  sound  law,  the  Supreme  Court 
of   Massachusetts,   wherein   it  originated,  has   since  held,   in 


96  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

Commonwealth  ?'.  Pierce  (138  Mass.,  165,  a.d.  1884),  that 
the  accuracy  of  its  report  was  doubtful  and  its  law  open  to  criti- 
cism. The  facts  in  Pierce's  case  were  these :  Defendant  held 
himself  out  as  a  physician.  There  was  no  more  law  in  Mas- 
sachusetts to  prevent  him  from  so  doing  in  1884  than  there  had 
been  to  prevent  Thomson's  like  pretension  in  1809.  Being 
called  to  a  sick  woman,  he  caused  her,  she  consenting,  to  be 
kept  for  some  three  days  swathed  in  flannel  underclothing 
saturated  with  kerosene.  Under  this  treatment  she  died  in 
great  misery.  There  was  evidence  in  the  case  that  in  some 
instances  similar  treatment  by  defendant  had  resulted  favor- 
ably, but  also  that  in  one  it  had  burned  and  blistered  the  flesh, 
as  in  the  case  of  deceased.  Defendant's  counsel  at  trial  asked 
the  court  to  charge,  following  the  rule  in  Thomson's  case,  that 
defendant  could  not  be  convicted  unless  it  were  proven  beyond 
reasonable  doubt  that  death  resulted  from  his  treatment,  and 
that  he  had  such  knowledge  or  probable  information  of  the 
fatal  tendency  of  his  prescription  as  to  justify  the  jury  in  pre- 
suming that  death  was  the  effect  of  his  obstinate  or  wilful 
recklessness,  and  not  of  an  honest  intent  and  expectation  to 
cure.  This  request  was  refused,  defendant  was  convicted,  and 
his  conviction  affirmed  by  the  appellate  court,  who,  by  Holmes, 
J.,  said  that  the  language  of  Thomson's  case  relied  upon  by 
defendant — viz.,  that  "to  constitute  manslaughter  the  killing 
must  have  been  a  consequence  of  some  unlawful  act.  Now 
there  is  no  law  which  prohibits  any  man  from  prescribing  for 
a  sick  person,  with  his  consent,  if  he  honestly  intends  to  cure 
him  by  his  prescription  " — was  ambiguous  and  wrong,  if  it 
meant  "that  killing  must  be  the  consequence  of  an  act  which 
is  unlawful  for  independent  reasons  apart  from  its  likelihood 
to  kill."  "Such,"  continued  the  court,  "may  once  have  been 
the  law;  but  for  a  long  time  it  has  been  just  as  fully,  and  lat- 
terly, we  may  add,  much  more  willingly,  recognized  that  a  man 
may  commit  murder  or  manslaughter  by  doing  otherwise  law- 
ful acts  recklessly,  as  that  he  may  by  doing  acts  unlawful  for 
independent  reasons,  from  which  death  accidentally  ensues." 
Thomson's  case,  it  was  said,  did  not  intend  to  lay  down  new 
lav*',  but  cited  and  meant  to  follow  Lord  Hale,  whom  it  had 
taken  too  literally,  since  his  lordship  admitted  that  other  per- 
sons might  make  themselves  liable  by  reckless  conduct  (I.  P. 
C.  472) ;  and  why  not  a  physician  as  well? 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  97 

As  to  what  constitutes  criminal  recklessness  in  such  cases, 
the  court  said  substantially  that  the  standard  is  not  gauged  by 
the  actor's  belief  or  idea  of  danger,  but  by  common  experience. 
If  the  thing  done  "  is  generally  supposed  to.  be  universally 
harmless  and  only  a  specialist  would  foresee  that  in  a  given 
case  it  would  do  damage,  a  person  who  did  not  foresee  it  and 
who  had  no  warning  would  not  be  held  liable  for  the  harm. 
,  .  .  The  use  of  the  thing  must  be  dangerous  according  to 
common  experience,  at  least  to  the  extent  that  there  is  a  mani- 
fest and  appreciable  chance  of  harm  from  what  is  done,  in 
view  either  of  the  actor's  knowledge  or  of  his  conscious  igno- 
rance. .  .  .  Common  experience  is  necessary  to  the  man  of 
ordinary  prudence,  and  a  man  who  assumes  to  act  as  the 
defendant  did  must  have  it  at  his  peril,  .  .  .  The  defendant 
knew  he  was  using  kerosene.  The  jury  have  found  that  it 
was  applied  as  the  result  of  foolhardy  presumption  or  gross 
negligence,  and  that  is  enough.  .  ,  Indeed,  if  the  defend- 
ant had  known  the  fatal  tendency  of  the  prescription,  he  would 
have  been  perilously  near  the  line  of  murder."  The  rule  laid 
down  in  this  carefully  reasoned  case  must  commend  itself  to 
prudent  men;  for  it  really  amounts  only  to  this:  that  if  one 
unversed  and  unskilled  in  medical  science  and  practice  under- 
takes, nevertheless,  the  cure  of  a  patient,  and  in  so  doing  uses 
remedies  or  adopts  a  treatment — whether  positive  or  negative 
ought  to  make  no  difference — from  which  there  is  a  manifest 
and  appreciable  chance  of  harm  according  to  common  expe- 
rience, he  shall  be  held  liable  for  his  recklessness  and  shall 
not  be  excused  by  the  innocence  of  his  intention.  And  cer- 
tainly when  part  of  the  treatment  adopted  is  the  exclusion  of 
proper  treatment,  this  is  just  as  harmful  as  if  positively  in- 
jurious methods  were  adopted.  It  is  just  as  much  homicide  to 
cause  death  by  star\'ation  by  keeping  food  from  the  victim  as 
to  use  an  active  poison. 

How  does  this  principle  apply  to  "Christian  Science," 
"faith  cure,"  or  any  eccentric  treatment  of  the  sick — not  ex- 
cluding voudoo  or  the  "  scandal    cure  "  * — that  by  operating 

*  I  knew  once  of  a  malade  imaginaire  who  for  years  had  drifted  feebly 
from  bed  to  lounge  and  back  again.  I'hysicians  were  in  vain.  One  day  a 
friend  called  and  said  that  the  newspapers  had  gotten  hold  of  a  bit  of 
history  that  would  interest  the  nation  on  the  following  Sunday.  The  patient 
leaped  from  the  lounge,  took  a  cab  to  the  steamer  office,  and  by  Sunday 
was  on  the  ocean.     This  is  the  "scandal  cure." 

7 


98  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

Strongly  on  the  mind  may  restore  the  lost  equilibrium?  Is  the 
pursuit  of  any  of  these  methods  "  practice  of  medicine  "  ? 

While  the  ordinary  quack,  who,  as  has  been  said,  pretends 
only  to  extraordinary  human  skill  or  knowledge,  is  therefore 
generally  held  to  be  a  practitioner  of  medicine,  Christian 
Scientists,  who  go  further  and  pretend  to  procure  for  lucre 
divine  intervention  by  their  prayers,  contend  that  in  thus  offer- 
ing to  heal  the  sick,  although  for  hire,  they  are  not  practising 
medicine,  but  observing  religious  rites,  and  are  therefore  pro- 
tected in  their  practices  by  constitutional  safeguards.  We  are 
thus  brought  to  consider  what  is  the  "  practice  of  medicine." 
The  answer  to  this  query  must  depend  in  most  instances  upon 
the  words  of  the  statute  and  the  peculiar  circumstances  of  the 
case.  In  the  New  York  case  of  Smith  v.  Lane  (24  Hun,  632, 
A.D,  188 1),  plaintiff,  apparently  a  masseur,  sued  for  agreed 
fees  which  defendant  refused  to  pay  on  the  ground  that  plain- 
tiff, not  being  licensed  to  practise  medicine,  could  not  recover 
compensation  for  his  treatment,  which,  as  the  opinion  of  the 
court  recites,  "consisted  entirely  of  manipulation  with  the 
hand.  It  was  performed  by  rubbing,  kneading,  and  pressure." 
The  court  said: 

"The  practice  of  medicine  is  a  pursuit  very  generally  known 
and  understood,  and  so  also  is  that  of  surgery.  The  former 
includes  the  application  and  use  of  medicines  and  drugs  for 
the  purpose  of  curing,  mitigating,  or  alleviating  bodily  dis- 
eases; while  the  functions  of  the  latter  are  limited  to  manual 
operations,  usually  performed  by  surgical  instruments  or  ap- 
pliances. .  .  .  To  allow  incompetent  or  unqualified  persons  to 
administer  or  apply  medical  agents,  or  to  perform  surgical 
operations,  would  be  highly  dangerous  to  the  health  as  well  as 
the  lives  of  the  persons  who  might  be  operated  upon,  and  there 
is  reason  to  believe  that  lasting  and  serious  injuries  as  well  as 
the  loss  of  life  have  been  produced  by  the  improper  use  of 
medical  agents  and  surgical  instruments  or  appliances.  It  was 
the  purpose  and  object  of  the  Legislature  by  this  act  to  prevent 
a  continuation  of  deleterious  practices  of  this  nature,  and  to 
confine  the  uses  of  medicine  and  the  operations  of  surgery  to 
a  class  of  persons  who,  upon  examination,  should  be  found 
competent  and  qualified  to  follow  these  professional  pursuits. 
No  such  danger  could  possUdy  arise  Jrotn  the  treatment  to  which 
the  plaintiff's  occupation  was  confined.      While  it  might  be  no  ben- 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  99 

efit,  it  could  hardly  be  possible  that  it  could  result  in  harm  or 
injury. 

"And  for  that  reason  no  necessity  existed  for  interfering 
with  this  pursuit  by  any  action  on  the  part  of  the  Legislature. 
It  may  be  that  credulous  persons  would  be  deceived  into  the 
employment  of  the  plaintiff,  and  in  that  manner  subjected  to 
imposition.  But  it  was  no  part  of  the  purposes  of  this  act  to 
prevent  persons  from  being  made  the  subjects  of  mere  imposi- 
tion." 

Either  the  italicized  words  are  superfluous  or  they  contain 
an  implication  that  if  the  treatment,  in  the  court's  opinion,  had 
been  capable  of  causing  injury  like  improper  medical  treat- 
ment, the  judges  would  have  classified  it  in  the  same  category. 

In  Eastman  7k  State  (lo  N.  E.,  97),  an  Indiana  case,  the  court 
said,  on  the  other  hand :  "  It  is  the  purpose  of  the  statute  to 
prevent  persons  who  do  not  possess  the  necessary  qualifications 
to  practise  medicine  or  surgery  from  inflicting  injury  upon  the 
citizens  by  undertaking  to  treat  diseases,  wounds,  and  in- 
juries." And  again:  "The  State  has  an  interest  in  the  life 
and  health  of  all  its  citizens,  and  the  law  under  examination 
was  framed,  not  to  bestow  favors  upon  a  particular  profession, 
but  to  discharge  one  of  the  highest  duties  of  the  State — that  of 
protecting  its  citizens  from  injury  and  harm."  In  People  ?'. 
Phippin  (70  Mich.,  6),  the  defendant  was  held  to  have  prac- 
tised medicine,  on  proof  that  he  held  himself  out  as  "  Dr.  W. 
W.  Phippin,  magnetic  healer,"  had  attempted  to  cure  the  sick, 
and  in  the  case  of  a  child's  death  had  certified  the  cause  to  be 
"canker, sore  mouth.  Duration  of  disease:  June  3  to  July  22, 
1887."  In  Bibber  v.  Simpson  (59  Me.,  181),  a  clairvoyant 
who  gave  remedies  was  said  to  be  practising  medicine.  So 
also  in  Nelson  v.  Harrington  (72  Wis.,  591).  And  in  New 
York,  De  Leon,  who  prescribed  for  a  child,  drawing  its  horo- 
scope and  giving  some  rhubarb,  was  convicted  of  illegal  prac- 
tice of  medicine.  The  administration  of  electricity  has  also 
been  held  to  constitute  medical  practice — Davidson  71.  Bohl- 
man  (37  Mo.  App.,  576). 

The  Ohio  statute  provides  that  "Any  person  shall  be  re- 
garded as  practising  medicine  or  surgery,  within  the  meaning 
of  this  act,  who  shall  append  the  letters  M.D.  or  M.B.  to  his 
name,  or  for  a  fee  prescribe,  direct,  or  recommend  for  the  use 
of  any  person  any  drug  or  medicine  or  other  agency  for  the 


lOO  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

treatment,  cure,  or  relief  of  any  wound,  fracture,  or  bodily 
injury,  infirmity,  or  disease."  That  seems  very  broad;  but  in 
the  case  of  Eastman  ?'.  State  (6  Ohio  Dec,  296),  it  was  held, 
in  January,  1897,  that  a  "graduate  of  the  school  of  osteopathy 
of  Kirkville,  Mo.,"  v;as  not  practising  medicine  by  kneading 
and  manipulations,  using  only  his  hands  and  no  medicines. 
The  court  cited  Smith  7>.  Lane,  and  held  that  the  words,  "any 
other  agency,"  were  too  vague  and  were  limited  by  the  partic- 
ular words,  "drug  or  medicine."  * 

The  New  York  statute  does  not  define  medical  practice. 
Such  a  definition  was  framed  in  the  draft  of  the  act  of  1887, 
but  stricken  out  because  a  certain  Senator,  who  died  shortly 
afterward,  declared  that  it  would  include  an  eccentric  healer 
who  had  saved  him  from  the  grave.  The  definition  was  yielded 
to  save  the  bill. 

The  Nebraska  medical  act  defines  as  a  practitioner  any  one 
"  who  shall  operate  on,  or  profess  to  heal,  or  prescribe  for,  or 
otherwise  treat  any  physical  or  mental  ailment  of  another." 

Under  this  statute  arose,  in  1894,  the  case  of  State  t.  Bus- 
well  (40  Nebr.,  158).  The  defendant,  charged  with  unlawful 
practice  of  medicine,  claimed  to  be  a  Christian  Scientist,  grad- 
uated from  the  Metaphysical  College  of  Mrs.  Mary  B.  G.  Eddy, 
of  Boston.  Defendant  offered  testimony  to  cures  wrought  by 
him  in  cases  of  rheumatism,  rattlesnake  bite,  pneumonia,  and 
scarlet  fever — the  last  in  the  case  of  a  child  four  years  old. 
He  testified  that  in  eighteen  months  he  had  treated  about  one 
hundred  persons,  of  whom  only  two  had  died.  The  accuracy  of 
his  diagnosis  was  not  in  issue.  He  testified  that  the  text-books 
of  the  Christian  Science  Church  are  the  Bible  and  Mrs.  Eddy's 
work,  "  Science  and  Health."  He  denied  that  in  a  medical 
sense  he  treated  physical  or  mental  ailments,  saying:  "I  un- 
derstand with  God's  laws,  and  not  mortal  man's."  Questioned 
as  to  the  privilege  of  patients  or  parents  to  call  in  medical 
aid,  he  said :  "  We  believe  that  every  one  has  a  right  to  express 
their  wish,  and  it  is  always  understood  that  if  they  prefer  some 
other  treatment,  or  some  other  mode,  or  some  one  else  to  aid 
them,  it  is  their  privilege.  We  always  do  that.  It  is  taught 
in  our  text-books.  We  never  give  any  medicine;  that  is  en- 
tirely contrary  to  the  teaching  of  Christian  Science."     And 

*  But  the  contrary  was  held  in  Illinois.  See  Eastman  v.  State,  71  111. 
App. ,  236,  cited  on  the  Brief  in  this  pamphlet. 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  lOI 

this  counsel  said:  "The  defendant,  and  those  of  the  same  faith 
with  him,  believe  as  a  matter  of  conscience  that  the  giving  of 
medicine  is  a  sin ;  that  it  is  placing  faith  in  the  power  of 
material  things,  which  belongs  alone  to  Omnipotence.  To  the 
Christian  Scientist,  it  is  as  much  a  violation  of  the  laws  of 
God  to  take  drugs  for  the  alleviation  of  suffering  or  the  cure 
of  disease,  as  for  a  Methodist  clergyman  to  take  the  name  of 
his  God  in  vain  to  relieve  his  overwrought  feelings." 

Being  asked  if  he  took  pay  from  his  patients,  he  said:  "As 
a  rule  I  do  not.  We  tell  them  we  leave  the  question  to  them 
and  God.  ,  .  .  Jesus  says  the  laborer  is  worthy  of  his  meat, 
and  we  expect  that  those  whom  we  spend  our  lives  for  to 
remunerate  us  for  it.  If  they  are  not  willing  to  part  with  the 
sacrifice  themselves,  it  is  not  expected  that  those  should  reap 
the  benefit."  Considering  that  defendant  described  his  treat- 
ment as  one  of  prayer,  this  intimation  that  the  answer  to  prayer 
would  be  contingent  on  the  payment  of  the  Scientist's  fee  ap- 
parently seemed  rather  blasphemous  to  the  court,  who  very 
aptly  cited  two  cases  from  one  of  the  science's  text-books,  the 
Bible — the  former,  that  of  Simon  the  sorcerer  (reported  in  Acts 
viii.  18-23),  to  whom  Peter  said,  "Thy  money  perish  with 
thee,  because  thou  hast  thought  that  the  gift  of  God  may  be  pur- 
chased with  money";  the  second,  that  of  Gehazi  (2  Kings 
V.  20-27),  servant  of  Elisha,  v.'ho,  finding  that  his  master  had 
gratuitously  cured  of  leprosy  Naaman,  the  rich  Syrian,  thus 
establishing  a  precedent  for  dispensary  abuses,  remarked,  "As 
the  Lord  liveth,  I  will  run  after  him,  and  take  somewhat  of 
him,"  and  in  the  end  took  not  only  a  fee,  but  the  disease. 
Upon  these  precedents  the  Nebraska  court  ruled  thus : 

"The  exercise  of  the  art  of  healing  for  compensation, 
whether  exacted  as  a  fee  or  expected  as  a  gratuity,  cannot  be 
classed  as  an  act  of  worship.  Neither  is  it  the  performance  of 
a  religious  duty,  as  was  claimed  in  the  District  Court."  They 
further  said :  "  The  object  of  the  statute  is  to  protect  the  af- 
fiicted  from  the  pretensions  of  the  ignorant  and  avaricious,  and 
its  provisions  are  not  limited  to  those  who  attempt  to  follow 
beaten  paths  and  established  usages."  This,  it  will  be  noticed, 
is  very  different  from  the  view  of  the  New  York  law  taken  in 
the  New  York  case  of  Smith  v.  I.ane  and  the  Ohio  case  of 
Eastman  v.  State  {supra),  as  well  as  from  the  latest  case  of  the 
kind,   State  ?'.  Mylod  (40  At.,  753),  decided   in   Rhode  Island 


I02  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

last  July  upon  these  facts:  Defendant  undertook  to  cure  one 
Hale  of  malaria  and  one  Vaughan  of  grip,  by  apparently  en- 
gaging in  silent  prayer  and  giving  them  pamphlets  on  Chris- 
tian Science.  He  received  a  fee  of  $i,  but  gave  no  medicines, 
made  no  examination  or  diagnosis.  He  testified  that  he  did 
not  attempt  to  cure  disease,  had  no  knowledge  of  medicine  or 
surgery,  and  that  his  only  method  was  "  prayer  and  effort  to 
encourage  hopefulness  for  all  who  come  to  him  in  public  or 
private,  and  whatever  diseases  they  imagine  they  have."  The 
court  held,  citing  Smith  7',  Lane,  that  in  the  absence  of  diag- 
nosis, prescription  of  remedies,  or  surgical  methods  there  was 
no  medical  practice.  They  suggested  that  if  Christian  Science 
is  practice  of  medicine,  then  as  a  school  it  is  entitled  to  recog- 
nition by  the  State  Board,  and  that  it  would  be  absurd  to  hold, 
under  the  Rhode  Island  statute  which  forbids  discrimination 
against  medical  schools,  that  requirements  could  be  prescribed 
which  members  of  a  particular  school  could  not  comply  with, 
since  that  would  be  not  to  discriminate  only,  but  to  prohibit.* 
And  the  court  distinguished  the  cases  of  clairvoyant  physicians 
upon  the  ground  that  therein  the  defendants  had  prescribed 
medicine  and  professed  to  cure  diseases.  There  seems  to  be 
fallacy  in  the  implication  by  the  court  that  any  educational 
requirements  as  a  condition  of  medical  license  are  prohibitory 
upon  any  persons  except  those  who  are  unable  to  acquire  an 
education ;  and  it  is  quite  proper  to  exclude  such  persons  from 
the  ranks  of  physicians. 

The  question  is  full  of  difficulty.  Every  one  admits  the 
power  of  mental  impulses  in  nervous  diseases;  admits  nature's 
healing  force  that  so  often  cures  without  any  attendance  at  all; 
and  admits  that  it  would  be  wrong  to  forbid  all  recourse  to  any 
aid.  But  this  much  being  conceded,  are  we  to  admit  also  that 
any  person  should  be  entitled  to  take  charge  of  the  sick  merely 
because  he  pretends  to  act  under  religious  beliefs  and  to 
abstain  from  using  those  remedies  and  methods  arrived  at  by 
study  and  investigation?  Are  we  to  punish  the  physician  who 
fails  to  report  yellow  and  scarlet  fevers,  diphtheria,  and  other 
contagious  disorders,  and  allow  a  person  who  boasts  his  igno- 
rance of  medical  and  sanitary  science  to  treat  and  conceal  such 
cases?     The  Christian  Scientist,  in  his  madness  or  worse,  says 

*On  this  point  cf.  Dowdell  v.  McBride,  45  S.  W.  397,  cited  on  the 
Brief  in  this  pamphlet. 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  I03 

that  there  is  no  disease  but  only  fear  or  loss  of  relation  to 
God,  which  he  in  his  blasphemy  undertakes  to  restore,  pro- 
viding he  is  paid  for  his  services.  What,  then,  would  his 
death  certificate  be?  Would  it  be  that  Jones  was  permanently 
scared?  What  would  his  report  of  a  contagious  disease  be? 
That  Brown  has  a  panic,  which  is  likely  to  spread? 

In  the  case  of  Reynolds  v.  United  States  (98  U.  S.,  145, 
A.D.  1878),  the  Supreme  Court  of  the  nation  applied  common 
sense  to  this  proposition,  that  the  name  of  religion  may  be  used 
to  cloak  either  lust  or  imposture.  Defendant,  a  member  of  the 
so-called  Church  of  Jesus  Christ  of  Latter-day  Saints,  being 
indicted  for  bigamy,  pleaded  in  defence  that  the  penalty  im- 
posed by  his  church  upon  its  male  members  who  failed  to 
practise  polygamy  "  when  circumstances  would  admit "  was 
"damnation  in  the  life  to  come."  No  such  dreadful  penalty 
hangs  over  a  Christian  Scientist  who  abstains  from  his  lucra- 
tive practices.  The  Supreme  Court  said  in  Reynolds'  case: 
"  Laws  are  made  for  the  government  of  actions;  and  while  they 
cannot  interfere  with  mere  religious  belief  and  opinions,  they 
may  with  practices,"  Can  it  be  seriously  contended,  asks  the 
court,  that  a  civilized  nation  may  not  lawfully  suppress  human 
sacrifices  and  the  Indian  custom  of  suttee,  because  their 
votaries  claim  religious  sanction  therefor;  or  polygamy  for  the 
same  reason  ?  To  suffer  such  things,  it  was  answered,  "  would 
be  to  make  the  professed  doctrine  of  religious  belief  superior 
to  the  law  of  the  land,  and  in  effect  to  permit  every  citizen  to 
become  a  law  unto  himself.  Government  could  exist  only  in 
name  under  such  circumstances,"  These  wise  words  of  the 
court  apply  even  to  honest  believers,  whom  we  may  respect,  or, 
at  least,  sympathize  with,  even  in  their  delusions.  But  if  the 
defence  of  religion  were  allowed  to  the  extent  that  the  eccen- 
trics claim,  the  deadly  sin  of  lying  would  become  even  more 
prevalent  than  it  is,  and  the  dangerous  classes  would  go  over 
in  a  body  to  soi-disant  religion. 

There  was  an  English  case  in  1868,  Reg,  v.  Wagstaffe  (10 
Cox's  Cr.  Cas„  530),  wherein  parents  were  charged  with  man- 
slaughter of  a  child  because,  pursuant  to  their  religion  as 
members  of  the  "  Peculiar  People,"  they  neglected  to  provide 
medical  attendance  for  it,  in  a  case  of  acute  infiammation  of 
the  lungs;  instead  they  anointed  and  prayed  over  it.  The 
court  charged  that  if  they  had  let  the  child  starve  for  want  of 


I04  A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN. 

food,  the  case  would  have  been  different;  for  every  one  recog- 
nizes the  need  of  food.  But  it  was  not  the  same  when  the 
question  was  one  of  medical  attendance,  for  as  to  that  opinions 
differed,  and  he  read  to  the  jury  from  the  general  Epistle  of 
St.  James  (v.  14,  15)  those  words  upon  which  the  Roman 
Church  rests  the  doctrine  of  extreme  unction,  and  the  Mormons 
and  "  Peculiar  People  "  rest  their  doctrine  of  healing  the  sick 
by  anointing  and  prayer  only;  words  which  the  learned  and 
sensible  commentator,  Adam  Clark,  forcibly  argues  to  be  an 
exhortation  by  the  Apostle  to  use  the  ordinary  Eastern  remedy, 
oil,  as  well  as  prayer,  in  treating  the  sick.  The  jury  acquitted. 
Recently  in  a  like  case,  Reg.  ?'.  Cook,  they  disagreed.* 

Beyond  doubt  there  are  very  honest,  intelligent,  cultivated 
persons  who  believe  in  the  efficacy  of  Christian  Science  and 
faith  cure.  Among  some  twenty  cases  of  death  under  such 
treatment,  including  cases  of  contagious  diseases,  the  writer 
has  noted  the  names  of  such  persons.  It  is  equally  true  that 
some  "  intelligent  persons  "  find  no  "  fad  "  too  extraordinary 
for  adoption.  The  writer  knew  of  a  most  shrewd  and  culti- 
vated woman  who  consulted  in  Sing  Sing  prison  as  to  invest- 
ment in  stocks  an  "  astrologer,"  convicted  not  only  of  illegal 
medical  practice,  but  of  abhorrent  crime.  It  is  said  that  where 
voudooism  prevails,  cultivated  people  consult  its  priestesses, 
after  the  fashion  of  Nicodemus.  And  when  St.  John  Long, 
prince  of  quacks,  was  convicted  of  manslaughter  at  the  Old 
Bailey  (4  Car.  and  P.,  398)  among  the  twenty-nine  patients 
who  testified  to  the  excellence  of  his  treatment  were  divers 
"ladies  of  quality,"  headed  by  the  Marchioness  of  Ormond, 
than  whom,  save  royalty,  only  a  duchess  could  be  better  able 
to  form  a  sound  opinion  in  such  case. 

But  nothing  is  more  false  than  to  say  that  medical  laws  for- 
bid the  practice  of  Christian  Science,  faith  cure,  voudoo, 
vitapathy,  or  any  other  "  pathy  "  or  cult.  Those  laws  provide 
only,  at  most,  that  no  person  shall  practise  medicine  who  has 
not  pursued  a  course  in  medical  study.     There  is  nothing  in 

*  This  case  should  have  been  cited  as  Regina  t'.  Senior,  the  conviction  in 
which  was  affirmed  after  this  article  appeared  {Laiu  Times,  December  17, 
1898  ;  vol.  cvi.,  p.  151).  The  decision  apparently  is  made  under  the  Act 
for  the  Prevention  of  Cruelty  to  Children  (57  and  58  Vict.,  ch.  41,  10). 
In  Cook's  case  the  jury  found  the  parent  guilty  of  gross  negligence,  but 
could  not  or  would  not  agree  that  the  negligence  was  the  proximate  cause 
of  death  (see  letter  to  Medical  Record  ol  January  21,  1899). 


A    REVIEW    OF    CASES    AFFECTING    MEDICAL    MEN.  I05 

them  to  prevent  any  licentiate  from  practising  as  he  pleases. 
There  is  nothing  to  prevent  a  masseur  without  license  from 
washing  and  rubbing  a  man,  if  he  confines  himself  to  that. 
But  there  is  no  reason  why  unqualified  persons  should  be  al- 
lowed to  pretend  to  cure  disease,  by  their  pretenses  deprive 
the  sick  of  the  benefits  of  science,  and  yet  escape  the  just  con- 
sequences of  their  imposture.  The  whole  case  of  these  people 
who  desire  to  earn  a  livelihood  by  treating  the  sick  without 
any  adequate  preparation  therefor  through  study  and  investiga- 
tion was  summed  up  in  the  grotesque  falsehood,  circulated  by 
way  of  petition  to  the  New  York  Legislature  of  1885  for  the 
repeal  of  the  medical  law,  which  said: 

"  The  law  deprives  from  practising  in  this  State  persons 
who  are  gifted  with  the  power  of  healing  by  the  laying  of 
hands,  through  the  presence  and  imparting  of  vital  magnetic 
force,  and  otherwise.  Some  of  these  powers  are  natural  to  the 
practitioner,  and  cannot  be  imparted  or  increased,  but  are  likely 
to  be  limited  or  impaired  by  the  course  of  study  required  by 
medical  colleges."  Could  anything  be  more  absurd  .'^  The 
natural  power  to  heal  disease  impaired  by  the  acquisition  of 
knowledge  concerning  disease!  And  yet  there  were  those  pre- 
pared to  believe  even  that,  so  true  is  it  to-day,  as  of  old,  that 
the  wonderful  is  the  unknown  and  the  credible  that  which  is 
impossible  of  belief. 

It  may  be  a  question  of  policy  whether  Christian  Scientists 
should  be  prosecuted;  whether  cheap  martyrdom  might  not 
strengthen  them.  But  there  seems  no  good  reason,  as  matter 
of  law,  why  they  should  not  be  punished  for  the  evil  they  actu- 
ally do;  prohibited,  if  the  policy  seem  wise,  from  treating  the 
sick  without  adequate  preparation  by  study  of  medical  science, 
and  convicted  of  manslaughter  if  death  results  from  interfer- 
ence.— Fro7n  the  ''■Medical  Record,''  Not.  26th,  i8g8,  by  per- 


INSANITY. 

Its  Classificatioii,  Diagnosis  and  Treatment; 

A  Manual  for  Students  and  Practitioners  of  Medicine. 
BY 

E.  C.  SPITZKA,  M.  D., 

Professor  of  Medical  Jurisprudence  and  of  the  Anatomy  and  Physiology  of  the 
Nervous  System,  at  the  New  York  Post-Graduate  School  of  Medi- 
cine, President  of  the  New  York  Neurological  Society,  etc. 


In  this,  the  first  systematic  treatise  on  Insanity  published  in  America  since 
the  days  of  the  immortal  Rush,  the  author  has  made  its  definitions,  classifica- 
tions, diagnosis  and  treatment  plain  and  practical  ;  and  has  laid  particular 
stress  upon  points  comparatively  new  and  has  succeeded  in  presenting  the  sub- 
ject in  such  a  manner  that  the  rudiments  of  this  difficult  and  intricate  branch 
of  medicine  may  be  easily  acquired  and  understood. 

([;;^"This  important  work  has  already  been  adopted  as  the  Standard  Text- 
Book  in  the  College  of  Physicians  and  Surgeons  of  New  York,  the  College  of 
Physicians  and  Surgeons  of  Baltimore,  the  Rush  Medical  College  of  Chicago, 
the  College  of  Physicians  and  Surgeons  of  St  Louis,  and  the  Medical-Chirurgi- 
Cal  College  of  Philadelphia. 


The  Boston  Medical  and  Surgi- 
cal Journal  says;  ' '  Conservative  and 
in  accordance  with  the  highest  principle 
of  scientific  investigation,  which  accepts 
no  half-truth,  but  proven  facts  alone. 
.  .  .  Its  chief  merit  consists  in  its 
effort  to  present  the  subject  in  a  clear, 
accurate,  and  scientific  manner." 

The  Louisville  Medical  News 
says:  "  The  book  is  written  in  a  clear 
and  forcible  style,  and  while  the  practi- 
cal side  of  the  cjuestion  is  keptconstant- 
fy  in  the  foreground,  it  abounds  in  inci- 
dents, historical  and  modern,  which 
admirably  illustrate  the  points  made  by 
the  author,  and  contribute  largely  to  the 
entertainment  of  the  reader." 

The    Weekly    Medical   Review 

says:  "  It  cannot  be  neglected  by  any 
one  desiring  a  clear  and  comprehensive 
review  of  the  whole  subject  of  insanity." 


The  New  York  Medical  Record 

Says;  "  The  accomplished  author  dis- 
plays throughout  a  masterly  grasp  of  his 
intricate  subject,  and  a  familiarity  with 
its  bibliography  which  is  in  the  highest 
degree  commendable.  •  .  The  pre- 
sentation  of  his  arguments  is  direct  ana 
decided,  his  illustrations  usually  apt  and 
well  put,  and  his  expositions  of  the 
most  important  points  forcible." 

The  Cincinnati  Lancet  and  Clinic 

says:  "A  great  variety  of  useful  infor- 
mation and  an  intelligent  discussion." 

The  American  Medical  Weekly 

says:  "  It  is  clear,  it  is  up  to  the  times, 
and  last  but  not  least,  it  is  practical." 

The  New  England  Medical 
Monthly  says:  "  15y  far  the  best  book 
that  has  appeared  in  English  in  this 
department  of  Science.' 


In  One   Large  Octavo   Volume,  424   pages.     Illustrated.     $2.75. 


E.  B.  TREAT  &  CO.,  241-243  W.  23(1  St.,  New  York. 


ILLUSTRATED  SKIN  DISEASES. 

AN  ATLAS  AND  TEXT  BOOK 

■WITH    SPECIAL    REFERENCE    TO    MODERN    DIAGNOSIS    AND    THE    MOST    APPROVED 
METHODS  OK  TREATMENT. 

By    WILLIAH  S.   GOTTHEIL,   H.D., 

Professor  of  Skin  and  Venereal  diseases  at  the  New  York  School  of  Clinical  Medicine  :  formerly  Lecturer  on 

Dermatology  in  tnc  New  York  I'olyclinlc;  Consulting  Dermatologist  to  the  Orphan  Asylum  of  the 

Sheltering    Guardian  Society  ;  Dermatologist  to  ihe   Lebanon   Hospital,  the  Norlb 

Western  and  the  West  Side  German  Dispensaries ;  Fellow  of  the  New 

York    Academy  of  Medicine,  and  Member   of   the    New, 

York   County    Medical   Society,   etc. 

The  pictorial  representation  of  disease  is  a  recognized  aid  to  the  prac- 
titioner in  every  department  of  medicine  ;  but  in  Dermatology  it  is  of 
pre-eminent  importance.  In  the  study  of  skin  diseases,  the  great  majority 
of  the  symptoms  are  objective  and  visual,  and  the  diagnosis  must  be  made 
by  the  eye-sight  alone.  It  is  very  difficult  to  represent  in  words  the  mani- 
fold impressions  and  the  delicate  variations  of  color  and  shape  that  are  so 
readily  appreciated  through  the  optic  nerve. 

It  is  not  surprising,  therefore,  that  the  attempt  to  depict  on  paper  and 
preserve  permanently  the  varied  and  evanescent  forms  of  skin  diseases  has 
occupied  the  attention  of  many  Dermatologists.  Yet  it  can  hardly  be 
claimed  that  a  degree  of  success  commensurate  with  the  efforts  made  has 
been  attained;  which  is  largely  due,  of  course,  to  the  necessary  limitations* 
of  the  methods  employed.  Photography  gives  us  form;  but  color,  an 
element  of  equal  importance  in  depiction,  is  absent.  It  can  rarely  be 
•done  from  life  by  the  anatomical  artist,  and  when  possible,  entails  an -ex- 
pense that  is  almost  prohibitive;  it  can  never  be  as  delicately  minute  as 
Nature  is.  Chromo-lithography  at  best  is  more  or  less  crude,  since  it  is 
an  attempt  to  imitate  the  varying  tints  and  shades  of  nature  in  a  few  striking 
colors  by  mechanical  processes. 

In  this  combined  Atlas  and  Text-book  of  Skin  Diseases  the  colors  are 
as  true  as  the  forms,  since  both  are  obtained  through  the  camera.  The  vast 
'strides  riiade  in  color-photograpby  during  the  last  year  or  two  have  ren- 
dered it  possible  to  produce  a  seriesof  life-like  representations.  The  artist's 
brush  has  not  been  used,  and  the  color  plates  are  made  from  color  negatives 
directly  taken  from  living  subjects.    Additional  features  are  : 

1.  The  introduction  into  the  text  of  a  large  number  of  illustrations  \n 
black  and  white,  made,  for  the  most  part,  from  negatives  taken  of  the 
author's  own  cases  drawn  from  his  e-xtensive  hospital,  dispensary  and 
private  practice,   and  made  under  his  immediate  supervision. 

2.  The  few  necessary  anatomical  and  pathological  illustrations  are 
mostly  photo-micrographs;  made  with  the  camera  from  actual  section. 

3.  The  great  advances  made  in  Dernlato-therapeutics.and  the  modern 
methods  of  treatment  are  fully  recognized. 


CONDITIONS.— The  work  will  be  issued  in  Quarto  Portfolios, 
each  comprised  of  four  colored  plates  of  cases  from  life,  24  quarto  pages  of 
descriptive  and  profusely  illustrated.text  with  numerous  formula;. 


13  portfolios.    Each,  $1.00.     Bound  in  half  morocco,  $15.00. 


E.  B.  TREAT  &  CO.,  24 1  -243  West  23d  Street,  New  York. 


LEGAL  MEDICINE 

A  Complete  Work  of  Reference  for  Medical 
«nd  Legal  Practitioners. 

By  ALLAN  McLANE  HAMILTON,  M.D., 

Consulting  Physician  to  the  Insane  Asylums  of  New  York  City, 

ASSISTED  BY 

LAWRENCE  GODKIN,  Esq.,  of  the  New  York  Bar, 
And  a  Corps  of  Thirty  Collaborators 

In  its  various  departments,  witli  wtiicli  tlieir  scientific  reputation  is  identiNed. 


THE  list  of  contributors  to  this  great  work  includes  the  names  of  some  of  the  most  dis- 
tinguished writers  and  authorities  upon  Medical  Jurisprudence  in  America.  As  a 
book  of  reference  it  will  be  found  an  invaluable  help  to  medical  men  and  by  those  of 
the  legal  profession  who  desire  the  aid  of  the  most  advanced  and  sound  opinions  of 
practical  students  of  forensic  medicine.  So  much  opprobrium  has  been  attached  to  the  word 
expert,"  that  the  spirit  which  so  often  impels  men  to  go  into  Court  and  become  ardent  parti- 
sans, finds  no  place  in  this  system,  and  it  will  be  the  aim  of  the  Editor  and  his  Colleagues  to 
give  the  work  a  decided  judicial  and  impartial  tone,  so  that  it  may  be  consulted  with  confidence 
by  all  as  an  authority  of  the  first  order. 

Until  recently  the  contributions  in  the  United  States  to  the  literature  of  Medical  Jurispru- 
dence have  been  e.xceedingly  meagre,  if  we  may  except  Beck's  classical  but  antiquated  treatise, 
and  other  works  limited  in  scope.  For  some  time  it  has  been  the  fashion  to  consult  Foreign 
books  which  are  written  for  the  benefit  of  trans- Atlantic  readers,  and  in  many  respects  are  in- 
applicable to  our  methods,  and  not  in  conformity  with  the  legal  usages  of  this  country.  We 
therefore  believe  that  the  appearance  of  an  American  treatise  of  this  character  will  be  especially 
timely  and  welcome. 

A  feature  of  the  book  will  be  the  introduction  of  short  articles  upon  special  »ubjects  pre- 
pared by  distinguished  members  of  the  American  Bar  which  will  form  appendices  to  the 
different  articles. 

The  legal  gentlemen,  who  have  been  invited  to  write  articles  upon  subjects  with  which 
they  are  especially  familiar,  have  in  most  instances  acted  in  conjunction  with  a  medical 
collaborator. 

The  Editor  has  aimed  to  make  the  work  under  consideration  a  repository  of  the  most 
advanced  ideas  and  valuable  cases,  and,  except  when  the  latter  are  unique,  indispensable,  or 
especially  pertinent,  it  will  be  his  aim  and  that  of  his  associates  to  avoid  threadbare  material, 
and  to  illustrate  the  articles  by  new  examples.  The  scope  of  the  work  is  necessarily  very  great, 
but  it  is  trusted  that  its  contents  will  be  found  to  be  practical  and  concise.  Extraneous  matter 
is  dispensed  with,  and  the  reader  will  be  spared  dry  and  uninteresting  details  and  valueless 
decisions.  A  feature  of  "  Hamilton's  System  of  Legal  Medicine  "  wU  be  the  presentation  of  a 
large  amount  of  new  experimental  research. 


THE  WORK  will  be  comprised  in  two  large  royal  octavo  volumes,  of 
about  700  pages  each;  illustrated  when  practicable  and  desirable  by 
Photographic  reproductions  from  Nature  and  other  Drawings  and  Special 
Diagrams  ;  by  Chromo-lithography  and  Engravings  in  line  and  half-tone 
process. 

THE  riECHANICAL  EXECUTION— paper,  press-work  and  binding- 
will  be  equal  to  the  best  known  to  the  art  of  boak-making. 

In  Substantial  Cloth  Binding,  per  volume,     -      $5.50 
In  Full  Sheep,  Uniform  Law  Style,  per  volume,   6,50 

SOLD  BY  SUBSCRIPTION.     Orders  taken  only  for  the  complete  work. 
Descriptive  32-page  Pamphlet,  giving  List  of  Contributors,  Synopsis  of 
Contents,  Specimen  Pages,  etc.,  etc.,  sent  on  application. 

E.  B.  TREAT  &  CO.,  241  243  West  23d  Street,  New  York. 


TREAT'S  MEDICAL   CLASSICS. 

Octavo  volumes,  uniform  in  size  and  style  of  binding  (Cloth),  $2.      each. 


SYNOPSIS   OF  THE   PRACTICE   OF   MEDICINE. 

For  Tractitioners  and  Students.  An  embodiment  of  the  late  Systems  and 
CycloJ'icdia.  By  Wm.  Blair  Stkwart,  A.M.,  M.D.,  Lecturer  on  Thera- 
peutics, and  late  Instructor  in  Practice  of  Medicine  Medico-Chirurgical 
College,  Philadelphia. 

CLINICAL  DIAGNOSIS. 

By  Alhert  Abrams,  M.D.,  Professor  of  Pathology,  Cooper  Medical  College, 
Pathologist  to  the  City  and  County  Hospital,  San  Francisco.     Third  Edition. 

MODERN   GYNECOLOGY. 

Comprising  the  latest  treatment  in  this  branch  of  Medical  Science.  By 
Charles  II.  Bushong,  M.U.,  Assistant  Gynecologist  and  Pathologist 
to  Demilt  Dispensary,  New  York. 

DISEASES   OF  THE   HAIR   AND   SCALP. 

By  George  Thomas  Jackson,  M.D.,  Professor  of  Dermathology,  Woman's 
Medical  College,  New  York  Infirmary ;  Chief  of  Clinic  and  Instructor  in 
Dermathology,  College  of  Physicians  and  Surgeons,  etc. 

INSANITY;    A   MANUAL   OF. 

Its  Classification,  Diagnosis  and  Treatment.  By  E.  C.  Spitzka,  M.D., 
Professor  of  Medical  Jurisprudence  of  the  Nervous  System,  New  York 
Post-Graduate  School.     Second  Edition. 

NERVOUS   EXHAUSTION   (NEURASTHENIA). 

Its  Hygiene,  Causes,  Symptoms  and  Treatment.  By  George  M.  Beard, 
A.M.,  M.D.,  formerly  Lecturer  on  Nervous  Diseases  in  the  University  of  the 
City  of  New  York ;  Fellow  of  the  New  York  Academy  of  Medicine,  etc. 
Third  Edition  Revised  and  Enlarged  by  A.  D.  Rockwell,  A.M.,  M.D., 
late  Professor  of  Electro-Therapeutics  in  the  New  York  Post-Graduate 
Medical   School   and    Hospital,  etc. 

SEXUAL   NEURASTHENIA. 

Devoted  to  Genital  Debility.  Its  Causes,  Symptoms  and  Treatment,  with 
a  Chapter  on  Diet  for  the  Nervous.  By  George  M.  Beard,  A.M.,  M.D. 
Edited  by  A.  D.  Rockwell,  A.M.,  M.D.        Fifth  Edition. 

EXCESSIVE  VENERY,  MASTURBATION  AND  CONTINENCE. 

Their  Etiology,  Pathology  and  Treatment,  including  diseases  resulting 
therefrom.  By  Joseph  W.  Howe,  M.D.,late  Professor  of  Clinical  Surgery 
in  Belle vue  Hospital  Medical  College;  Fellow  of  the  New  York  Academy 
of  Medicine ;  Visiting  Surgeon  to  Charity  and  St.  Francis  Hospitals. 

DISEASES  OF  THE   NOSE   AND  THROAT. 

By  P.  Watson  Williams,  M.D.,  M.R.C.S.  (London),  Physician  in  charge 
of  Throat  Department,  Bristol  Royal  Infirmary;  Honorary  Physician  to  the 
Institute  for  the  Deaf  and  Dumb. 


SURGICAL   HANDICRAFT. 

A  Manual  of  Surgical  Manipulations,  and  Minor  Surgery.  By  WALTER 
PvE,  F.R.C.S.,  Surgeon  to  St.  Mary's  Hospital  and  the  Victoria  Hospital 
for  Sick  Children,  of  Glasgow.  Revised  and  Edited  by  T.  H.  R.  Crowle, 
F.R.C.S.,  Surgical  Register  to  St.  Mary's  Hospital,  and  Surgical  Tutor  and 
Joint  Lecturer  on  Practical  Surgery  in  the  Medical  School. 

8vo.    600  pages.    Fully  illustrated.    Cloth,  $3.50  net;  Sheep,  $4  net. 


E.  B.  TREAT  &  CO.,  241-243  West  23d  Street,  New  York,, 


COLUMBIA  UNIVERSITY  LIBRARIES 


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